The obligation to record the time worked during each working day is inevitably a source of concern for the companies now starting this practice, because there is a risk that its improper use could produce a “distorted image” of the time worked by their employees. All companies have a natural fear (especially in the case of jobs measured solely by results) that once in the hands of the worker, the timesheet can be used to artificially prolong the working day or include periods that should not be included in the calculation of time worked. Companies’ responses to such risks appear to be quite uniform: (i) to eliminate recording of any periods that should not be counted because they are not considered effective work time, and (ii) to make the possibility of working overtime subject to a requirement to first obtain authorization from a direct supervisor.
In judgment
144/2019 by the Labor Division of Spain’s Central Criminal and
Administrative Court, of December 10,
the court examined the legality of both of those measures and, in that case,
ruled that both were valid. The dispute addressed in that case reminds us that
when a company makes decisions on how to begin recording the working day, it is
not starting from zero. Instead, the company already has a certain way to treat
that time worked, which could be affected by the system being implemented for
daily recording of the working day. In other words, this is not the first time
we have seen opposition based on the idea that existing practices produced more
beneficial conditions. In the mentioned case, the union that filed the claim
had not proved that the disputed time periods had previously been treated as
part of the working day—specifically time spent by salespersons returning home
from their last sales call, as well as break time such as coffee breaks, smoke
breaks and breakfast breaks—and that more beneficial conditions had, therefore,
previously existed.
In particular,
regarding the fact that the company did not require recovery of the time spent
on cigarette and coffee breaks, the court considered this to merely represent a
form of business tolerance. Therefore, it refused to label such practices as a
more beneficial condition, or in other words, the company’s conscious intention
to benefit the workers in cases where the working day was not previously
monitored, i.e., where the company was unaware of the exact magnitude or impact
of such breaks. Instead, the company was seen as operating under a policy of
trust, where each employee was responsible for working the full amount of time
committed each day.
The result of
that criterion is that workers that used to take such breaks without being
required to remain at work longer to compensate for them will now be required
to do so.
Here we can see
that compliance with the legal obligation to record the working day has created
a problem where none existed before, by requiring a change for companies and
workers from a situation characterized by a certain freedom of
self-organization, more in line with modern concepts of flexibility in the
workplace and talent attraction (and that nobody was opposing), to a state of
control that disrupts the organizational “privacy” of the employees, by forcing
them to record their time worked, particularly the breaks they have taken.
The union also
challenged the requirement that working overtime must be subject to
authorization from a direct supervisor. Instead, it claimed that for overtime
to be considered valid, it should be sufficient for work to be effectively and
materially performed during hours beyond the ordinary working day, or on
additional days.
The court also
rejected that argument stating that, in the absence of an agreement stating
that overtime is mandatory, (i) it is performed only because both parties have
given their consent (a requirement that would not be met if only the employee
decides); (ii) leaving performance of overtime to the judgment of the workers
would be contrary to section
1.256 of the Spanish Civil Code; and (iii) it could also represent a
violation of the health and safety obligations that a company has assumed with
its employees in relation to the amount of time worked.
Therefore, the
court confirmed the validity of the rule imposed by the company requiring
authorization before its employees can work overtime (which could also serve to
discourage cases of artificial extension of the working day), although the
judgment did not establish how overtime performed without such authorization
should be treated, especially when it is the workload imposed by the company
that has caused an employee to extend his or her working day: Does extra time
worked for that reason have the same nature as overtime? Can a company penalize
employees that have extended their working day without permission, when they
had to do so to do their job properly?
In the end,
judgments such as the one discussed here show that the mandatory recording of
the working day limits a company’s freedom to decide which productivity methods
to apply to the jobs it creates. There are some positions where monitoring the
time during which an employee is present/connected is the same as monitoring
the time worked, but this is not the case for many other activities, where
results are given priority and the worker is granted significant margins of
flexibility and benefits in terms of having a work-life balance.
However, the
controversy does not end here, because the union that filed the initial claim
has just announced that it has filed an appeal against the judgment with
Spain’s Supreme Court.