Diego Saenz and his co-workers wanted their time to be tracked. They knew that a ruling from the European Court of Justice (ECJ) had resulted in a law in Spain that required electronic time tracking, but their small company refused to make the shift, figuring the fine was less trouble than implementing a new system.
Saenz, an engineer in Madrid, eventually moved to a new company that did track hours electronically. Now, he swipes a card every time he enters and leaves the facility and can also input his work-from-home time on a company app from his phone.
“I like it, because I feel I am doing the correct time,” Saenz said. “I used to tend to overwork when the time was not tracked. So I am pretty much closer to 40 hours per week nowadays.”
But other countries are going in the other direction—adopting more flexible work tracking due to the rise in remote work as a result of the pandemic.
European Court of Justice Ruling Interpreted Differently
In 2019, a lawsuit was filed by the Spanish trade union Comisiones Obreras against the Spanish subsidiary of Deutsche Bank. The union wanted the bank to implement mandatory work-time recording. The ECJ ruled in favor of the trade union that year.
“The ECJ had ruled that the EU member states must provide for a specific working time documentation system to ensure that all daily working time with employees would be recorded so that there is an objective, reliable and accessible system for the individual employees,” said Nils Neumann, an attorney with K&L Gates in Berlin.
Different EU companies have chosen to implement this ruling in different ways, and many are still figuring out the best way to integrate the ruling into their laws.
“There was some controversy when this ECJ ruling came out whether it would have actually a direct effect on employers in Germany. The German Working Time Act leaves some room to argue that based on this ECJ judgment, every employer would [already] directly be obliged to record all working time of their employees in Germany,” Neumann said.
“Lawsuits to compensate overtime are expected to become easier for employees as a result” of the ruling, predicted Johannes Höft, an attorney with Taylor Wessing in Hamburg, Germany. “Up to now, in case of doubt, the employee has to prove the performance of each individual hour for which he or she claims subsequent payment. As soon as electronic time recording is mandatory, the burden of proof would be reversed.”
“In February of this year, the German Employment Minister has provided draft legislation, which includes such an obligation for limited groups of employees, but it’s still in discussion within the government,” Neumann said.
Regardless of whether that comes to pass in Germany, “a cautious employer, at least in Germany, would start thinking about putting in place such a system to record all working time,” Neumann said, “even if they may not really have an obligation at this stage.”
In France, implementing mandatory time recording has not been a priority, but it benefits companies to put systems in place regardless.
“For years, we have been advising our clients to control the working time in case of court actions and control from the labor inspector,” said Christine Artus, an attorney with K&L Gates in Paris. “But some companies are very reluctant. So this directive is very helpful. This court decision is very helpful.”
Pandemic Changed the Way Many Employees Work
The pandemic has also changed how the ruling could be adapted within the EU, with more people working from home or working a hybrid schedule. “Remote work is still a key point and key question and a request from almost all of the employees,” Artus said. “So what is very interesting is to consider this court decision now that we have changed the way we work.”
While Italy has had a system similar to the one required by the ECJ ruling in place since 2003, the pandemic has changed how work tracking is being implemented. “Italy is switching to a system which is more flexible due to the COVID-19 emergency and thanks to the smart working and home working regulations,” said Ottavia Colnago, an attorney with K&L Gates in Milan. Employees working from home no longer are required to follow strict work time but have more flexibility and are entitled to organize their own agenda and their own workday, Colnago said.
Katie Nadworny is a freelance writer in Istanbul.