Is it obligatory to record the hours worked each day even if no overtime is worked?
On December 4, 2015 the National Appellate Court handed down a judgment in which it ruled that employers have the obligation to establish a system for recording the hours actually worked by employees each day (in order to be able to monitor suitable compliance with the stipulated working hours and the eventual working of overtime) and that the statutory employee representatives must be given information on the overtime worked each month, pursuant to article 35 of the Workers’ Statute.
In order to reach this conclusion, the National Appellate Court focused the debate on two perfectly separate but related issues, given that the second depends on the first. Thus, it first considers whether or not there should be a record of the hours worked each day in all cases, even if no overtime has been worked, and, secondly, whether or not there is an obligation to inform employee representatives of the overtime worked each month.
The National Appellate Court based its answer to the foregoing questions on the following argument:
a) As its main argument, it considered that the aim of article 35.5 of the Workers’ Statute is for an employee to know how many hours he has worked on any given day so that, if necessary, he can prove that he has worked overtime. It therefore concluded that if there is no daily record of hours worked, it is materially impossible to determine whether or not overtime has been worked.
Supplementary to the main argument, it held that compliance with this obligation cannot be excused by issues such as, for example, the complexity of a company’s working schedules or the fact that a part of the daily hours can be worked outside the workplace.
b) As a subsidiary argument, assuming the obligation to have a daily record of hours worked, it held that employee representatives should be informed of said record of hours as part of their supervisory and control duties.
Without a doubt, this is an especially significant judgment, and should its position be upheld by other courts, it will have a direct impact on the way the record of hours worked and company working schedules are managed, as well as on the operating structure itself, in terms of longer working hours and the working of overtime.
Garrigues Labor and Employment Law Department