Following the introduction into the Spanish legal system of criminal liability of legal persons in 2010, consideration was given to the importance of putting control mechanisms in place to ensure compliance with legislation in order to avoid or reduce such liability as far as possible.
These mechanisms, and, in particular, the implementation of compliance programs, have become essential following the reform of the Criminal Code introduced by Organic Law 1/2015, of March 30, 2015. This reform defined the essential aspects that the programs should include, as well as the need to entrust supervision and compliance to a body with independent powers of initiative and control, the so-called compliance officers.
Crime prevention is ultimately a multidisciplinary area, since crimes may be committed in various different fields of law. Consequently, in order to properly identify conduct that may involve a criminal risk, the people in charge of these programs must not only be familiar with criminal law, but also with tax law, administrative law, labor/employment and social security laws, etc.
Our blog today does not deal with Labor Law from this standpoint, but rather seeks to underscore the conflicts and issues that may arise (and are arising) in the sphere of labor relations when implementing a compliance program at a company.
For example, the Criminal Code states that compliance programs must set up “a disciplinary system that adequately penalizes the breach of the rules established by the model.” However, does this provision mean that businesses are able to unilaterally establish a disciplinary system that is binding upon their employees? Is this provision compatible with the reference made in the Workers’ Statute to collective negotiation in disciplinary matters?
Issues such as these increase when we study the impact of labor legislation on the investigation by compliance officers of potential breaches by employees. Can a detective be engaged to verify the conduct of an employee outside the company’s premises? Can an employee’s use of the internet, IT systems and phone that the company places at his/her disposal be monitored? How long can the investigation last without the risk of the employee’s breach becoming time-barred from an employment law standpoint?
It is clear that for the implementation and development of a compliance program to prove successful and achieve the statutory objectives, it is essential to attach the appropriate importance to the matter and to bring into play the necessary resources and experience.
Garrigues Labor and Employment Law Department