Recording of daily working hours by companies: to control the workers or the company?
Some months ago in this Blog, we commented on a judgment by the National Appellate Court (dated December 4, 2015) and discussed the possibility of it becoming a new precedent in relation to the recording of working hours. The National Appellate Court has maintained its criteria and, in judgments dated February 19 and May 6, 2016, confirmed the requirement of a control of working hours.
This criterion is resulting in Labor Inspectors asking for daily working hours records and, unless overruled by the Supreme Court, it appears likely that effective compliance with the provisions of article 35.5 of the Workers’ Statute will be required (“For the purposes of calculating overtime, the working hours of all employees shall be recorded on a daily basis (…)”, in the sense that such control must be kept in all cases and not, as understood until now, only to control overtime.
Should companies control their employees’ working hours? The answer appears obvious and logical and, even if we are not employers, we would all agree that it is undoubtedly the only way to determine whether an employee works or not.
Attendance control is used mainly by industrial companies at factories and, in general, industries in which it is easy to measure activity and the work performed. For these companies, the control of clocking in and even the recording of time are elements that have become consolidated as absolutely essential, when it seemed that the decision to apply them was left up to the employer and, therefore, was one of its rights.
On the other hand, at other types of companies in which it is difficult to measure activity or where intellectual work is what matters (offices, engineering firms, law firms…), attendance is not often controlled and what is required are results, given that trust, functions and responsibility often inherently include the performance of work until it is effectively concluded (irrespective of the time it takes).
The answer provided by the National Appellate Court is categorical – this apparent “employer’s right” that could be exercised or not until now (provided overtime was not worked, of course), has been converted into an obligation on the part of the employer to control working hours and even in an obligation to monitor working hours on a daily basis, to determine that employees are effectively working their hours.
According to the wording of the mentioned article and the interpretation by the National Appellate Court, companies are obliged to control working hours on a daily basis and the workers to provide signed confirmation of the hours worked, also on a daily basis. Failure to keep a daily record of working hours could lead to serious or very serious penalties, pursuant to the Labor Infringements and Penalties Law.
There will certainly be a debate, as the wording of the Workers’ Statute does not specify any type of control, which raises many questions that are currently lacking an answer: How should a daily record be kept? In an office, if daily working hours are to be recorded, what is effective working and non-working time? If a record of working hours exists, how is time used for private affairs calculated?
We trust that the coherence and responsible management of mutual rights and obligations will enable labor relations to be based on more than just the recording and control of the number of hours worked.
Garrigues Labor and Employment Law Department