Recording The Working Day Is it possible to exclude breaks and require a supervisor’s approval to work overtime?

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.