Overtime in hospitality: what Spanish law says and how to keep it under control

Overtime in hospitality is a thorny subject. Everyone knows it happens, but few restaurants track it properly. The result: employees who rack up more hours than they should, owners who have no idea how much overtime is piling up, and a legal risk that grows month after month with nobody paying attention.

In this article I'll walk you through the legal limits under Spanish law, the difference between overtime and supplementary hours (which many people confuse), and how to track it all automatically.

The legal limit in Spain: 80 overtime hours per year

The Spanish Workers' Statute (Estatuto de los Trabajadores, Article 35) sets a maximum of 80 overtime hours per year per worker. This applies to all full-time contracts. Overtime is voluntary (unless agreed in the collective agreement or the contract) and must be compensated: either paid with a minimum 75% premium on top of the ordinary hourly rate, or compensated with time off within the following 4 months.

Important: overtime worked to prevent or repair emergencies (force majeure) does not count towards the 80-hour limit, but it must still be recorded and compensated.

Overtime vs. supplementary hours: not the same thing

This is a very common source of confusion in hospitality, especially with part-time contracts:

• Overtime: only applies to full-time contracts. These are the hours that exceed the maximum legal working day or the one agreed in the collective agreement. Limit: 80 per year.
• Supplementary hours: only apply to part-time contracts. These are additional hours above the ordinary hours in the contract, but below a full-time working week. They are not subject to the 80-hour limit, but they have restrictions of their own.

Restrictions on supplementary hours

• They must be agreed in writing (a supplementary hours agreement).
• They cannot exceed 30% of the ordinary hours in the contract (extendable to 60% by collective agreement).
• Ordinary hours plus supplementary hours cannot add up to more than a full-time working week.
• They must respect rest periods between working days (12 hours) and weekly rest.

In practice, if you have an employee on a 20-hour weekly contract who works 28 hours, those 8 additional hours are supplementary hours. If they work 42 hours, you have exceeded a full-time week and you are already in infringement territory.

And what is an hours deficit?

Less talked about but just as important: the deficit. If an employee has a 40-hour weekly contract and only works 36, they have a deficit of 4 hours. Legally it is not an infringement, but it is a management problem: you are paying for hours that are not being worked.

A good time tracking system shows you all three: overtime, supplementary hours and deficit. That way you can make decisions based on data, not gut feeling.

Penalties for failing to control overtime

Non-compliance on overtime can trigger several overlapping penalties under Spanish law:

• For failing to record working time (RDL 8/2019): serious infringement, fines from €751 to €7,500 per infringement.
• For exceeding the 80-hour overtime limit: a serious infringement, same range of fines.
• For not compensating overtime: if it is neither paid nor compensated with time off, it is an infringement in matters of remuneration.
• For overtime on part-time contracts: part-time contracts CANNOT include overtime. If it happens, the Spanish Labour Inspectorate (Inspección de Trabajo) can reclassify the contract as full-time, with the corresponding back-dated social security contributions.

On top of that, if an employee makes a claim for unpaid overtime and you have no reliable working time records, the burden of proof falls on you. In other words: if you cannot prove the hours they worked, they are presumed to have worked the hours the employee claims.

How to calculate overtime automatically

Doing it manually becomes unmanageable as soon as you have more than 5 employees. Every week you need to:

1. Add up the clocked hours for each employee.
2. Compare them with the contract hours.
3. Distinguish between overtime and supplementary hours depending on the type of contract.
4. Keep a running annual total to make sure you do not exceed the 80 hours.
5. Generate a report for your payroll advisor.

In Stellar HR, all of this happens automatically. The system knows each employee's contracted hours, records the clock-ins and works out the difference every week. If someone gets close to the limit of 80 overtime hours a year, you get an alert before it is too late.

The report exports as a PDF in the format your payroll advisor needs: employee, week, planned hours, actual hours, difference, type (overtime/supplementary/deficit) and annual running total.

Practical tips for hospitality

1. Review overtime every week, not every month. If you wait until the end of the month to review, it is already too late to correct course.
2. Separate full-time and part-time contracts in your system. The legal treatment is different, and so are the consequences.
3. Compensate with time off whenever you can. It is cheaper than paying the 75% premium and helps you stay away from the annual limit.
4. Watch out for split shifts: a shift from 12:00-16:00 and 20:00-00:00 is 8 hours, not 12. Make sure your system counts effective hours, not the gap between first clock-in and last clock-out.
5. Always keep the annual running total visible for each employee. 80 hours seems like a lot in January, but by October you have already lost control.

Overtime in hospitality is unavoidable in high season, during events or when someone calls in sick unexpectedly. The problem is not that it happens, but that it goes untracked. With an automatic system that records it, calculates it and alerts you, you go from having a latent problem to having a number under control.