On April 16, 2026, the Dirección del Trabajo issued Opinion No. 252/20, which reconsiders its previous ruling —Opinion No. 84/04, of February 6, 2024— and establishes a new doctrine on what "superior immediate supervision" means for purposes of article 22, paragraph 2, of the Labor Code. The change has direct consequences for companies that manage workforces with remote work, hybrid work, or goal-based schemes: the mere existence of technological control systems is no longer a sufficient argument to rule out exemption from working hours.
What happened
Article 22, paragraph 2, of the Labor Code establishes that workers who provide services "without superior immediate supervision due to the nature of the duties performed" are excluded from working time limitations. This provision applies, among others, to managers, administrators, and attorneys-in-fact with management powers. In February 2024, Opinion No. 84/04 had broadened that concept: superior immediate supervision would exist when there was criticism or supervision of the work —even through automated means, without human presence— with functional proximity to the worker. Under that criterion, a tracking app or a project management platform could, in principle, constitute supervision. Opinion No. 252/20 reconsiders that position. The DT concludes that the classification cannot be made in the abstract or based on formal elements: the job title, the contractual label, or the existence of recording systems do not by themselves determine whether or not there is superior immediate supervision. What does matter: the analysis must be specific and case-by-case. The opinion identifies five factors to guide that assessment —(i) the worker's degree of autonomy to organize their time and work modality; (ii) whether performance is evaluated by results or by compliance with a schedule; (iii) whether there is a superior who directly supervises the way and timing in which tasks are carried out; (iv) whether the role involves representation of the employer or autonomous decision-making; and (v) whether the control mechanisms affect the execution of the work or only its results. The resulting rule is precise: a traceability, reporting, or technological tracking system does not constitute superior immediate supervision unless it exercises, in practice, effective, direct, and functional control over how and when the work is performed.
What this may mean for your company
The doctrine of Opinion No. 252/20 directly affects how you structure working hours and variable compensation for your workforce. Until April 16, 2026, a company could argue that any digital tracking tool was enough to deny exemption from working hours. Opinion No. 252/20 closes that argument. The existence of the tool is not decisive; what matters is whether that tool exerts real control over the execution of the work. But there is another angle. The same criterion makes it possible to recognize exemption in workers who, although they use those tools, operate with real autonomy over how and when they perform their duties. If a role manages its own time, has no direct supervision over the way tasks are performed, and is evaluated by objectives, it may qualify as exempt from working hours even if the company maintains active reporting systems. The point is not the system: it is whether that system exercises effective control over execution. What this means in practice: there are workers who today are classified as exempt from working hours in their contract but whose technological monitoring, in fact, constitutes direct and functional supervision. And there are workers who today appear to have ordinary working hours but whose actual duties place them within the standard of article 22. Both situations create contingency. A gray area that deserves attention: the DT expressly states that remote work, goal-based schemes, and less hierarchical structures are not incompatible with exemption from working hours, but neither do they automatically guarantee it. Classification still requires an analysis of the actual duties of each role. For companies with ongoing labor inspections or claims for overtime pay, Opinion No. 252/20 opens arguments that were more difficult to sustain under the previous doctrine.
What you can do
If you have workers classified as exempt from working hours —or roles that should be classified that way according to their actual duties—, three concrete actions:
- Audit contracts against the new standard. Map which roles have a working-hours exemption clause and compare the actual duties with the five factors in Opinion No. 252/20. If there are discrepancies —exempt roles that in practice operate under direct control, or roles with working hours that have full functional autonomy—, correct them before an inspection.
- Evaluate how technological control mechanisms operate. If reporting or tracking systems affect the execution of the work itself —not only its results—, that worker probably does not qualify as exempt under the new doctrine. Document that analysis in an internal memorandum or protocol.
- Update contracts and addenda. The working-hours exemption clause must reflect the functional reality of the role. A contract that says "exempt from working hours" without support in the analysis of Opinion No. 252/20 does not generate protection: it generates contingency.
If you need to review the working-hours structure of your workforce or assess which roles qualify as exempt under the DT's new doctrine, schedule a meeting with our team: https://calendar.app.google/f13cTubrP12uveuBA This content is for informational purposes only and does not constitute legal advice for a specific case. Primary source: Opinion No. 252/20, Dirección del Trabajo, April 16, 2026. Art. 22, paragraph 2, Labor Code.