So-called trainees in hotel establishments

One of the issues to be taken into account when dealing with this controversial matter is to check the correct compliance with Spanish labor legislation.

The implementation of internships in the hotel sector, and of course, in the tourism sector in general, is of course not of recent application, although its regulation has varied over the years.

In 2017, some "controversial" words of a renowned Chef set fire to the social networks and made them rethink certain issues such as the rights of trainees, the need to increase the remuneration offered to them or even the fact that the so-called trainees would have to pay for coming to train in those companies and not the other way around. Of course, the Chef's words were commented on, criticized or praised, as the case may be.

In this sense, we must stop to think about the reason or lack of reason for such words.

In the first place, and for this reason, it is necessary to differentiate between non-working internships, compulsory university internships and internship contracts for training and apprenticeship.

Compulsory university internships are those in which the student does not yet have his or her degree, and there is no labor relationship with the company. Non-employment internships are intended for young people with an official degree who seek to improve their practical training, to learn on a day-to-day basis about the subject they have studied and in which they want to be trained for the future, in which case there is no employment relationship either. And finally, in the case of internship contracts, for training and apprenticeship, these are merely labor relationships with the specific characteristics established in the current labor legislation.

Regardless of the above, and in order to avoid finding ourselves before a "false intern", a priority front of the Labor Inspection, in order to combat fraud by companies that hire an intern to replace workers with a labor contract, regulated in the PlanDirector for a Decent Work (2018-2020) of the Labor Inspection, we must point out what the case law establishes: "for the purpose of determining the nature of the existing relationship between the parties, what is decisive is the rendering of services that has taken place (...), in such a way that if he is entrusted with tasks of little formative projection, but indispensable for the development of the normal activity of the center, so that if they were not performed by him they should be carried out by the staff, it is a labor activity where the typical notes of dependence, dependence and onerousness are appreciated".

In other words, the differentiating factor between an activity regulated as labor and a non-labor activity must be based on the purpose of facilitating the study of said person and not incorporating the results obtained by him/her to the patrimony of the person who provides it.

But in this case, we could all ask: Do I have a grant holder only and exclusively to observe? Could he/she perform any function or management with independence and autonomy?The answer is clear, with the aim of avoiding fraud, and it should always be taken into account: if the tasks or functions that the grant holder may be carrying out at a given moment within the business organization are not performed, they should be entrusted to a third party, this would be an employment relationship, which has nothing to do with the grant offered.  

Adding to this theinitiative of the current President of the Government, who already in July 2018, announced the creation of a Scholarship Holder Statute and the elimination of extracurricular internships. Finally, the Government of Spain, through Royal Decree-Law 28/2018, of December 28, for the revaluation of public pensions and other urgent measures in social, labor and employment matters, in its Fifth Additional Provision "Social Security for people who develop training programs and non-work and academic internships" includes the obligation for internships carried out by students in companies to contribute to the General Social Security Regime or not, regardless of whether or not they may be paid.

Although it is true that it is still under development, the Government must adapt, within the legally established term, the provisions of this regulation to adapt the regulations on the matter.

Prior to the aforementioned regulations, paid scholarships were the ones that did pay contributions, although with nuances, since they did not do so equally; if these external academic internships were curricular, part of the studies and obligatory for obtaining the degree, they are 100% subsidized, on the other hand, if they are extracurricular internships, i.e. voluntary and outside the study plans, they must be registered and paid into Social Security.

Therefore, it will be necessary to analyze how it is regulated from now on, being absolutely necessary to check and analyze by the hotel establishments the purpose of the functions of the new person that has been incorporated, having to comply with what is established in the current regulations, in order to avoid fraud and sanctions by the Labor Inspection.