Historically, the main concern about work hours has been to cap the number of hours employees can work in a given period. On the back of past struggles to achieve an eight-hour workday, as a general rule, we now have legal limits on daily working hours. Barring certain notable exceptions (Japan), the majority of western countries – and international laws – respect a maximum workday of eight hours, although each country has its own ways of counting weekly, monthly and yearly time worked. Almost all jurisdictions have passed laws to safeguard the eight-hour day, to adapt it (and reduce it) through collective labor agreements, and to limit the amount of overtime people can be asked to work. One of the central issues these countries have dealt with in doing so is how to monitor the time effectively worked, both to ensure compliance with rules on the right to rest and to punish any violations of the law.
In recent years, we have seen the topic broaden to encompass a number of new issues: in particular, the question of the right to a balance between personal/family life and work life, which relates more to how we manage our work time than to how long we work (and encompasses efforts to bring about greater gender equality in the workplace), and issues deriving from new technologies and the new ways of organizing and conducting work they make possible. This latter aspect notably includes attempts to limit “off-the-clock work” by affording employees a new right, the right to disconnect from after-work digital communications. However, things are still rather nebulous and abstract in this arena, perhaps because the problem is a new one and because it is hard to design regulatory solutions to fix it. A good example of this is the recent Law on Data Protection and the Safeguard of Digital Rights (Law 3/2018, of December 5, 2018), which enshrines the right to digital disconnection from the workplace but leaves it to companies to regulate the right through internal policies, subject to the collective bargaining agreements they reach with workers.
In both these issues, although certainly more in the first, it is critical to identify a system for monitoring the workday actually worked. And therein lies the question – a salient one today following publication of Royal Decree-Law 8/2019, of March 8, 2019 – of keeping track of hours worked. Under the Workers’ Statute, work hours need only be logged for part-time employees and in order to calculate overtime. Although the National Appellate Court considered that, despite lawmakers’ silence on the issue, daily records of hours worked were necessary for monitoring compliance with the established limits, the Supreme Court held that there was no valid argument for straying from the letter of the law and requiring timekeeping in cases other than those expressly envisaged therein (part-time work and overtime). Against this backdrop (in which the Court of Justice of the European Union will soon take a stance, since the National Appellate Court submitted the question for a preliminary ruling), Royal Decree-Law 8/2019, reflecting input from labor unions, established that “companies must ensure that daily records are kept of the time employees work, including the exact start and end times”. This is a sea change, because it legally enshrines companies’ obligation to guarantee that work hours are logged on a daily basis and that start and end times are noted.
Will this solve the difficulties in monitoring compliance with laws on working hours? Probably not, and, more to the point, it will most likely create new problems. The terms and objectives of the new regulation are clearly set out, but the regulation itself is simplistic and therefore hard to reconcile with the complex and diverse features of today’s production system (which is no longer predominately industrial), the many ways work can be organized and the growing influence information technologies have in that regard. Not to mention that even though timekeeping is already mandatory for part-time workers, this has not eradicated the fraud that abounds in these records.
Moreover, the law includes several caveats to the timekeeping requirement that strip it of the sought-after simplicity and give rise to a bounty of tricky interpretation problems.
Firstly, the timekeeping requirement is guaranteed “without prejudice to any flexibility established” in the law. What does that mean? To what extent would spreading out a workday in an unusual way, for example, affect the obligation to clock in and out each day? And how would the timekeeping requirement be affected by an agreement to distribute work time in some way other than the nine-hour per-day maximum? Or by the right to adapt work hours and to spread out the workday to achieve a work/life balance? If, as lawmakers intend, the obligation to record work hours each day cannot prejudice the flexibility that the very law envisages, it would be necessary to specify in what terms and with what scope this flexibility can warrant a timekeeping system different from that established as a general rule.
We also have to take into account that the Decree-Law envisages “special rules on mandatory timekeeping in those sectors, jobs and professional categories whose particular features so warrant”. Can the sectors and jobs with unique working hours and timekeeping aspects, particularly those envisaged in the Decree on special working hours, wait for the government to issue these special rules? The Decree-Law’s reference to “professional categories” is even more tricky, as there is absolutely no clarification of what these categories are. Are professional categories with unique working hours and timekeeping features expected to wait for the secondary legislation? We are faced with a quagmire of doubts and uncertainties, with the resulting erosion of legal certainty. Perhaps it would have been advisable to establish that, for the sectors, jobs and professional categories with special features, the new law would not enter into force until the special dispensations were duly regulated.
Thirdly, daily timekeeping must be organized and documented pursuant to collective bargaining or corporate agreements, or, failing that, at the employer’s discretion after consulting with workers’ representatives. Here again we find a veritable minefield of interpretative doubts. Does timekeeping have to be organized and documented pursuant to a company-specific labor agreement, or will a sector labor agreement suffice? The most reasonable answer would be that a company-specific labor agreement should be used, as it would reflect the business’s actual characteristics and features. Then, there is the question of whether collective bargaining can, or should, be done for each workplace, since the circumstances surrounding timekeeping could vary from one location to another. Moreover, if there is no official workers’ representation at a company, is the employer still required to decide how to organize and document the timekeeping?
Lastly, can there even be a timekeeping obligation if there is no agreement or decision on how to organize and document the records? Is the entry into force of the timekeeping obligation conditional on having such an agreement or decision? Is the two-month deadline for implementing a timekeeping system the period granted for collective bargaining to reach an agreement, whereby if no agreement is reached by that deadline, it then falls to the employer to decide how to organize and document the timekeeping? Furthermore, in the collective bargaining process, can the parties mutually agree to extend the two-month period envisaged in the final provision, so as to postpone application of the timekeeping obligation until the negotiation is finished?
Lastly, “infringement of the rules” in respect of timekeeping is regulated as a violation of labor regulations. Looking at the interpretative landscape summarized above, it does not seem that the new regulations respect the principle of criminalizing specific infractions. What is the actual infraction? Letting the two-month vacatio legis elapse without agreeing on or deciding how to organize the timekeeping? Refusing to negotiate on how to organize the timekeeping? Do the public authorities have oversight on the content of the agreement on organizing and documenting timekeeping? Can the public authorities oppose an agreement that adapts timekeeping needs to flexible working hours? It seems that the only clear infraction would be that of failing to comply with the system for recording working hours, once that system (in terms of organization and documentation) has been determined through collective bargaining or an employer’s decision. It remains to be seen how much oversight the administration will want to take on in this matter, which by all indications cannot be easily reduced to simplistic systems.
One final point to ponder. Is there really an extraordinary and urgent need for this regulation? Can we really understand an extraordinary and urgent need to exist if there is a two-month vacatio legis and if implementation of the regulation is made at least partly conditional on secondary regulations and collective bargaining?