If you need to review your specific case regarding overtime in Spain 2026, you can write to Fernanda Vargas on WhatsApp or book an appointment on Calendly. In this article, you will find out what overtime is, what its limit is, how it must be paid or compensated, and what you can do if it is not paid to you.
This is not a minor issue. According to data released by CCOO based on the Labor Force Survey (EPA) in 2026, around 2.54 million weekly overtime hours are worked in Spain without being paid or compensated, affecting some 436,000 employees. That is why it is important to distinguish very clearly between what is already in force and what is only political proposals or draft measures that have not yet been approved.
What Overtime Is and When It Is Considered Overtime
The basic rule is set out in Article 35 of the Workers’ Statute (Estatuto de los Trabajadores): overtime is any time worked in excess of the maximum ordinary working time. And that ordinary working time is linked to Article 34.1 of the same legal text, which sets a maximum duration of 40 hours of actual work per week on average over the year.
This is important because not every occasional extension of working hours is analyzed in isolation. The legal key is whether that time exceeds the applicable maximum ordinary working time. In practice, many claims arise because the employee starts earlier, leaves later, or works on days when they were not scheduled to work, and that excess ends up becoming time that exceeds their ordinary working time.
A simple example: if your ordinary working time has already been completed and the company asks you to keep working for one more hour to finish tasks, that excess may qualify as overtime. Another example: if, at the end of the reference period, it turns out that you have worked more than the ordinary working time that applied to you, that excess may also give rise to overtime hours.
What matters is not only that you were available or at the workplace, but that there was actual work above ordinary working time. In addition, that overtime must then be dealt with in accordance with the law: paying it correctly or compensating it with equivalent time off.
The Legal Limit: 80 Hours per Year and Which Hours Do Not Count
As a general rule, Article 35.2 of the Workers’ Statute establishes a maximum of 80 overtime hours per year. If the contracted annual working time is lower than the company’s general annual working time or the applicable full-time reference, that cap is reduced proportionally.
However, not all overtime counts toward that 80-hour limit. The law excludes two very important groups.
- Not counted are overtime hours that have been compensated with time off within the following four months.
- Also not counted are hours worked to prevent or repair accidents and other extraordinary and urgent damage. In addition, those hours are not taken into account either for the maximum working time or for the annual 80-hour cap, although they are still paid as overtime.
Therefore, when a company says that “it’s fine” because it will later give time off, you need to check when that time off is given. If the compensation takes place within the following four months, those hours do not count toward the annual cap. If they are not compensated within that period and there is no other valid basis, the dispute may end up becoming a wage claim.
It is also worth remembering that the law itself allows the Government to abolish or reduce the maximum number of overtime hours in order to increase employment opportunities. In 2026, the general rule in force remains the 80-hour annual limit.
Is It Mandatory? Voluntary Nature, Collective Agreement, and Contract
The general rule is clear: working overtime is voluntary. This is established by Article 35.4 of the Workers’ Statute.
The general rule is that it is voluntary, unless there is an agreement in the collective bargaining agreement or in the individual contract, and except for mandatory overtime to prevent or repair accidents or other extraordinary and urgent damage provided for in Article 35.3 of the Workers’ Statute. If such an agreement exists, overtime may be required within the legal limits. In other words, the company cannot rely on an agreement to bypass special prohibitions, the annual limit, or the rules on payment and compensation.
In practice, this means reviewing three documents or references: your contract, the applicable collective bargaining agreement (convenio colectivo), and the company’s actual system for organizing working time. If there is no valid agreement, the general rule remains that overtime is voluntary.
As of October 5, 2026, moreover, Royal Decree 723/2026 on transparent and predictable working conditions requires written information to be provided, among other matters, on working time and overtime and its remuneration. That information obligation does not by itself create mandatory overtime, but it does reinforce the need for the employee to know clearly what rules apply to their employment relationship.
How It Must Be Paid: Minimum Rate or Time Off Within Four Months
Overtime can be dealt with in two ways:
- Payment, in the amount set by the collective bargaining agreement or the individual contract, but never lower than the value of an ordinary hour.
- Compensation with equivalent paid time off.
If there is no agreement on how to compensate it, the law resolves the issue: it must be compensated with time off within the following four months.
This has several practical consequences. The first is that the company cannot pay overtime below the rate of a normal hour. The second is that, if it opts for time off, that time off must be equivalent and paid. The third is that, if there is no express agreement, it cannot leave compensation open-ended: the Statute sets a four-month period.
Example: if you work three overtime hours and there is no specific agreement on how they are to be paid, the default legal solution is that you must be given equivalent time off within the following four months. If the collective bargaining agreement or the contract provides for payment, that amount must be applied, always respecting the minimum floor of the value of an ordinary hour.
What You Should Check on Your Payslip
It is advisable to check whether the payslip shows paid overtime, whether there is a separate item for it, and whether it matches the working time summary provided by the company. If the compensation was with time off, it is useful to keep evidence of when those hours were generated and when the equivalent time off was taken.
Who Cannot Work Overtime: Minors, Night Work, and Part-Time Work
Not all workers can work overtime. The law establishes specific prohibitions that should be kept very much in mind.
- Workers under 18: they cannot work overtime.
- Night workers: they cannot work overtime.
- Part-time workers: they cannot work overtime, except in force majeure situations under Article 35.3 of the Workers’ Statute. In part-time work, what may exist are additional hours (horas complementarias), not overtime, outside that exceptional case.
This distinction is key in practice. Very often, a company calls any excess time “overtime,” but if the contract is part-time, that is not the ordinary legal category. And if we are talking about a minor or a night worker, the legal answer is even stricter: they simply cannot work overtime.
The only exception expressly highlighted for part-time work is force majeure under Article 35.3: prevention or repair of accidents and other extraordinary and urgent damage.
Working Time Records and Monthly Summary: What the Company Must Give You
Two legal obligations come together here and must be clearly distinguished.
- On the one hand, Article 35.5 of the Workers’ Statute requires that working time be recorded day by day and totaled over the period set for payment of wages, with a copy of the summary provided to the employee with the corresponding payslip.
- On the other hand, Article 34.9 of the Workers’ Statute requires a daily working time record showing the start and end time, and that record must be kept for four years.
In practical terms, if the company pays monthly, the usual thing is for that totaling and summary to accompany the payslip each month. What matters is the legal point: the employee must be able to know the calculation of their working time in the pay period, and the company must keep a daily record of clock-in and clock-out times.
In addition, the Court of Justice of the European Union, in case C-55/18 (CCOO/Deutsche Bank), held that States must require an objective, reliable, and accessible system for recording daily working time. That case law is highly relevant when there is a dispute about whether the hours existed or not.
If the company does not keep a reliable record, it is not only exposed to penalties: its evidentiary position in overtime litigation is also weakened. Although the employee must provide indications, the absence of a serious working time control system usually works against the company.
Social Security Contributions on Overtime in 2026
In 2026, the contribution rates applicable to overtime are different depending on the reason for it.
- Force majeure overtime: 14.00% total, split into 12.00% payable by the company and 2.00% payable by the employee.
- All other overtime: 28.30% total, split into 23.60% payable by the company and 4.70% payable by the employee.
That is why, when you review a payslip or a Social Security contribution adjustment, it is not enough to see whether the company recognizes overtime: the correct contribution rate must also be applied depending on whether it is force majeure overtime or another kind of overtime.
How to Claim Unpaid Overtime: Evidence, One-Year Time Limit, and Labor Inspectorate
If you have worked overtime and it has not been paid or properly compensated, the first step is to organize the claim carefully. In this area, details matter a great deal.
1. Gather Evidence and Indications
Keep anything that may prove your working time: working time records, summaries provided with the payslip, schedules, payslips, emails, messages, and any internal communication that helps reconstruct the hours worked. If the company has a clocking-in system, that material is especially relevant.
2. Organize the Hours by Date
It is not enough to say “I worked a lot of hours.” It is advisable to identify days, time slots, and pay periods. It is also useful to separate which hours were paid, which were compensated with time off, and which remained unsettled.
3. Calculate the Time Limit: One Year
The time limit for claiming wage amounts is one year from the date they could have been demanded. This means it is not advisable to wait: in overtime matters, time works against the employee if they let months pass without taking action.
4. Keep the Burden of Proof in Mind
Spanish case law has been holding that the employee must provide at least indications that the hours were worked. But when the company lacks a reliable record or breaches its working time monitoring obligations, an important part of the evidentiary burden shifts to it. In other words: the lack of a record does not prevent a claim; on the contrary, it may harm the company’s defense.
5. Consider the Labor Inspectorate and Court Proceedings
If the problem affects working time records, excess hours, or the failure to pay or compensate them, it may make sense to go to the Labor Inspectorate. And if what you want is to recover amounts owed, court proceedings may also be necessary. These are not incompatible paths: the Inspectorate can act against the company’s non-compliance, and the court claim serves to enforce your financial rights.
If you are not sure which strategy is best for you, the best option is to review the case with an employment lawyer before the one-year time limit expires.
Obligations and Penalties for Companies and HR Teams
For the company and for those who manage staff, the overtime regime is not just a matter of costs: it is also a matter of legal compliance.
- Respect the legal overtime limit.
- Do not assign overtime to people who cannot work it, such as minors, night workers, or part-time employees except in force majeure situations.
- Record daily working time with the start and end time.
- Total working time in the pay period and provide the employee with a copy of the summary with the corresponding payslip.
- Keep the record for four years.
- Correctly apply Social Security contributions to overtime.
- Provide written information about working time and about overtime and its remuneration, in accordance with Royal Decree 723/2026.
Failure to comply with the rules on overtime and working time records constitutes a serious infringement under Article 7.5 of the LISOS. The penalty can range from 751 to 7,500 euros, under Article 40.1.b of the same law.
Beyond the fine, poor document management makes the company’s defense more difficult in an inspection and in court. In this area, prevention is usually much cheaper than conflict.
What Is Being Debated: Expansion of the Limit and Digital Time Recording
In 2026, proposals and public statements have circulated about possible changes in working time and overtime, but it is important to separate the political debate from the law currently in force with precision.
On the one hand, on September 26, 2026, the PP’s Deputy Secretary for Economic Affairs, Alberto Nadal, argued for giving “more freedom” to agree overtime and cited the 80-hour cap as an example of rigidity. Limits in other countries such as France or Italy were also mentioned for comparison purposes. That political position does not change the Spanish rules currently in force.
On the other hand, there is a draft royal decree on digital time recording that would include additional requirements, such as recording overtime and indicating whether it is compensated with money or with time off. But that text is still at the draft stage after the Council of State opinion of March 2026 and has not been published in the Official State Gazette (BOE). Therefore, it is not yet in force.
It is also worth remembering that the proposal to reduce working time to 37.5 hours was rejected in Parliament in September 2025. So, as of today, the general legal reference remains the ordinary working time of Article 34 of the Statute and the overtime regime of Article 35.
Summary Table and Frequently Asked Questions
| Aspect | Rule in Force in 2026 |
|---|---|
| Definition | Overtime hours are those worked beyond the maximum duration of ordinary working time. |
| General working time reference | 40 hours of actual work per week on average over the year. |
| Annual limit | 80 overtime hours per year, with a proportional reduction if the contracted annual working time is lower. |
| Hours that do not count toward the limit | Those compensated with time off within the following four months and force majeure hours to prevent or repair accidents and other extraordinary and urgent damage. |
| Mandatory nature | They are generally voluntary, except where agreed in a collective bargaining agreement or individual contract and except for mandatory overtime due to force majeure (Art. 35.3 WS). |
| Payment | According to the collective bargaining agreement or contract, never below the value of an ordinary hour. |
| Compensation with time off | Equivalent paid time off; if there is no agreement, within the following four months. |
| Prohibitions | Workers under 18, night workers, and part-time workers cannot work overtime, except in force majeure situations in the latter case. |
| Record | Daily record with start and end time, kept for four years, and delivery of a copy of the summary in the pay period. |
| Time limit to claim amounts | One year from when they could have been demanded. |
| 2026 contribution rates | Force majeure: 14.00% total. All others: 28.30% total. |
| Penalties | Serious infringement, with a fine of 751 to 7,500 euros. |
Frequently Asked Questions
Can I Be Required to Work Overtime?
As a general rule, no. Overtime is voluntary, unless there is an agreement in the collective bargaining agreement or in your individual contract. In addition, Article 35.3 WS establishes that it is mandatory when it is necessary to prevent or repair accidents and other extraordinary and urgent damage.
How Many Overtime Hours Can Be Worked per Year?
As a general rule, 80 per year. If your contracted annual working time is lower, the limit is reduced proportionally. Hours compensated with time off within the following four months and those worked in force majeure situations to prevent or repair accidents and other extraordinary and urgent damage do not count toward that cap.
Can They Pay Me the Same for Overtime as for a Normal Hour, or Less?
Less, no. The law requires that, if it is paid, the amount set by the collective bargaining agreement or contract must never be lower than the value of an ordinary hour. It can also be compensated with equivalent paid time off.
What Happens If There Is No Agreement on Whether It Is Paid or Compensated With Time Off?
If there is no agreement, the legal rule is compensation with time off within the following four months.
Can I Work Overtime If I Have a Part-Time Contract?
No, except in force majeure situations under Article 35.3 of the Workers’ Statute. In part-time work, outside that exception, what may exist are additional hours.
Does the Company Have to Give Me a Summary With My Payslip?
Yes. Working time must be recorded day by day, totaled over the period set for payment of wages, and a copy of the summary must be provided to the employee with the corresponding payslip. In addition, there must be a daily record with the start and end time kept for four years.
How Much Time Do I Have to Claim Unpaid Overtime?
The time limit for claiming wage amounts is one year from the date they could have been demanded. If you have doubts about how that is calculated in your case, it is advisable to review it as soon as possible because letting time pass may mean losing part of the claim.
Can I Bring a Claim If the Company Does Not Keep Proper Working Time Records?
Yes. You must provide indications of the hours worked, but the absence of a reliable record usually harms the company in evidentiary terms. In addition, failure to comply with record-keeping obligations may give rise to action by the Labor Inspectorate.
If you want to know whether your overtime is being correctly paid, whether you can claim it, or how to prepare the evidence, you can contact Fernanda Vargas on WhatsApp or book a consultation on Calendly. Each case may depend on the collective bargaining agreement, the contract, the recording system, and the exact dates on which the hours were worked.