Imposition of Illegal Working Conditions (Art. 311 CP)

What the offence of imposing illegal working conditions is

Article 311 of the Spanish Criminal Code forms part of the so-called offences against workers' rights. Its purpose is to protect the body of labour rights granted by law, collective agreements or the individual contract against the most serious employer conduct, that which, due to its intensity, goes beyond a mere administrative infringement and warrants criminal reproach.

Art. 311.1 CP punishes those who, through deceit or by abusing a situation of need, impose on the workers in their service labour or Social Security conditions that harm, suppress or restrict the rights granted to them by legal provisions, collective agreements or the individual contract. The conduct is not limited to wages: it covers working hours, rest periods, holidays, social contributions, occupational safety and any other enforceable labour right.

Penalties under Art. 311 CP

The penalty is imprisonment of six months to six years and a fine of six to twelve months. This is a wide range that allows the defence to pursue both a possible acquittal and, where appropriate, a reduction of the penalty to its lower brackets. Where the conduct is carried out with violence or intimidation, the penalties are imposed in the upper degree under Art. 311.4 CP.

Contracting under formulas alien to the employment contract (Art. 311.2 CP)

Art. 311.2 CP, introduced by the 2022 reform (LO 14/2022), punishes those who impose illegal conditions on their workers by contracting them under formulas alien to the employment contract, or who maintain such conditions against an administrative requirement or sanction. This form addresses the concealment of the employment relationship (false self-employment) and its circumvention through arrangements other than the employment contract.

Large-scale employment without Social Security registration (Art. 311.3 CP)

Art. 311.3 CP punishes those who simultaneously employ a plurality of workers without registering them with the corresponding Social Security system or, where appropriate, without having obtained the relevant work authorisation, provided that the number of affected workers reaches the percentages set by law according to the size of the company (a percentage of the workforce or, in the smallest companies, the totality of the workers). This form addresses large-scale undeclared employment, distinct from the simple failure to register an isolated worker, which constitutes an administrative infringement.

This figure must be distinguished from Social Security fraud under Art. 307 CP: both may coincide, but they protect different legal interests. The defence must precisely delimit which conduct is charged and avoid a double assessment of the same facts.

Aggravated forms and related offences

The Criminal Code imposes the penalties in the upper degree where the above conduct is carried out with violence or intimidation (Art. 311.4 CP). Furthermore, Art. 311 often appears in conjunction with other offences: illegal trafficking of labour and deceitful recruitment (Art. 312 CP), the hiring of foreign nationals without a work permit under harmful conditions (Art. 311 bis CP), or, in the most extreme cases, human trafficking for the purpose of labour exploitation (Art. 177 bis CP). Correctly identifying the applicable offence is essential, because the penalties vary substantially.

Who is criminally liable

Liability falls on whoever has actual decision-making power over working conditions. Formal ownership of the company is not enough: the case law of the Supreme Court looks to the de facto employer and to those who carry out effective management, administrative or personnel functions. For this reason, directors, managers, HR officers or partners with effective control may face charges. Determining the true responsible party is often the first battleground of the defence.

Specialist criminal defence

At Alonso Sala, at Velázquez 27 (Madrid), we handle these proceedings by analysing the employment documentation, the labour inspection reports, the contracts, the payslips and the contribution records. We work to establish the absence of deceit or abuse, the absence of the relevant threshold, the lack of intent or the better channelling of the matter into the administrative sphere. Each strategy is designed around the specific facts and the available evidence.