In its judgement issued on May 14, 2019, the European Court of Justice (ECJ) states that all companies operating in EU member states must set up a system to record the working time of their employees. The ECJ states that Community regulations impose the obligation on employers to implement an objective, reliable and accessible system that allows recording of the daily workday performed by each worker.
In the press release no. 61/19 the ECJ added that “it is for the member states to define the specific arrangements for implementing such a system, in particular the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size.”
In this newsletter, Dentons European Employment Group has summarized the current situation on recording working time in different EU countries. The newsletter also offers an overview on countries, which are not members of the EU, where Dentons has offices, and that might be relevant for your international business. Finally, comments are indicated on how the decision will influence the current legal situation in different countries, and which possibilities (if any) companies can use in order to save costs.
Please do not hesitate to contact your Dentons Employment team for further questions.
Tomas Bilek
Yes, employers have an obligation to keep a record for each of their employees stating the beginning and end of:
There are no exceptions to the statutory obligation to record working time for employees, working based on an employment contract.
However, the employer is not obliged to record working time for employees, working based on agreements other than employment contracts (such as temporary jobs).
Overtime work is work performed by an employee, on the instruction of the employer or with the employer's consent, which exceeds standard weekly working hours (max. 40 hours) outside of working hours or regular shifts.
As regards part-timers, overtime means any work exceeding their predetermined weekly working hours; however, part-timers may not be ordered to work overtime.
Where the employer provides the employee with compensatory time off at the employee's request and the employee performs work for such time off, this is not regarded as overtime.
An employee may not be ordered to do more than 8 hours of overtime work within an individual week and 150 hours of overtime work within one calendar year.
The total scope of overtime work (i.e. overtime work ordered by the employer and other overtime work agreed between employer and employee) may not exceed on average 8 hours per week calculated over a period of no more than 26 consecutive weeks.
An employee is entitled to a wage for overtime work and a premium of at least 25% of his/her average earnings, unless the employer and the employee have agreed that instead of the premium for overtime work the employee will take compensatory time off.
However, where a wage is agreed with regard to potential overtime work, the employee is not entitled to the wage plus premium or to the compensatory time off for such overtime time. The wage may be agreed with regard to potential overtime work, provided that overtime hours are within the scope of 150 hours in one calendar year. The maximum limit for overtime hours for managerial employees is 416 hours per calendar year.
Statutory working time and conditions for overtime may be agreed in the collective bargaining agreement.
There is no legal impact in this matter, as Czech laws already strictly require recording working time, in particular for reasons of payment of overtime.
Katell Deniel-Allioux
French labor law requires the employer to control and monitor the working time of its employees to check that they comply with maximum working hours rules, rest periods, etc.
The modalities of control depend upon the working organization in place within the company and upon the categories of employees (clock-in/clock-out, individual declaration for executives having autonomy in their organization).
Senior executives are out of the scope of the 35- working hour regulations but the definition of such “senior executives” is very strict. Only executives involved in the strategic orientations/management of the company, with a great level of autonomy and at the highest level of the compensation system in force within a company could be considered as “senior executives” or “cadres dirigeants”.
Employees can work overtime up to an annual quota, fixed by law at 220 hours per year. However, it is possible to set a different quota (lower or higher) by an in-house agreement or a collective bargaining agreement.
Overtime pay is subject to one or more premium rates, fixed by the applied collective bargaining agreement or by a specific in-house agreement applied within the company. The minimum premium rate is 10%.
In the absence of any collective bargaining agreement or in-house agreement, the legal hourly premium rates are the following:
An equivalent compensatory rest can replace, in whole or in part, payment for overtime. . In this case, the duration of this rest period is equivalent to the increased remuneration.
For any hours performed over the annual quota of overtime, a compensatory rest is mandatory.
In the absence of more favorable provisions provided by agreement, the premium is set at:
Employee representatives are involved at several levels in the regulation of working time.
Most topics relating to working time are divided into three parts by the Labour Code:
Employee representatives are involved in the negotiation of agreements on working time and the right to disconnect from work (late at night, over the weekend, etc.).
In addition, employers must inform and consult the Works Council (CSE) on matters concerning the organization, the management and general running of the company, in particular on: organization of working hours or new conditions of employment, major changes in health and safety conditions or working conditions.
This decision will not have any impact on French law since the employer already has to control employees' working time. Provisions concerning the evaluation of the workload of employees, not subject to hourly organization, are already in place in order to respect workers' health and safety requirements. French Judges verify the control of the working hours/professional workload to determine whether or not employers are complying with their obligations.
Markus Diepold
According to Section 17 para 1 Minimum Wage Act (“Mindestlohngesetz”), employers are subject to an obligation to record working hours if an employee:
Outside these statutory regulations, an employer in Germany only has to record the working time that exceeds the daily working time of 8 hours (sec. 16 para 2 Working Time Act – “Arbeitszeitgesetz”). However, this obligation can also be assigned to the employee.
In addition, obligations to record working time often result from collective bargaining agreements or works agreements (depending of the concrete working time scheme).
The obligation to record working time according to Section 17 Minimum Wage Act was partially restricted by the Federal Ministry of Labor and Social Affairs. The obligation does not apply in the following cases:
The Working Hours Act does not apply to managerial employees (“leitende Angestellte”) and managing directors, who do currently not qualify as employees in the meaning of the Working Hours Act.
Special arrangements exist for employees working in the public service, aviation sector, inland waterway sector and road transport.
On basis of an agreement within the employment contract, it is possible to compensate overtime with the contractually agreed remuneration up to a certain premium (approx. 10 % of the weekly working time).
If the employee’s income is above the assessable income limit within the statutory pension insurance (currently €80,400 gross/year in West Germany and €73,800 gross/year in East Germany), it is also possible to compensate all activities of the employee, including any overtime, with the payment of the remuneration.
Collective Bargaining Agreements often contain restrictive clauses on the possibility to perform overtime, and grant employees an additional payment for overtime.
German works councils (“Betriebsrat”) have a very far-reaching right of co-determination in working time matters. For example, they must agree to company regulations concerning:
As German law is similar to Spanish law on the recording of working time, the decision of the EJC will have a short-term impact in Germany. Legislative changes are already under discussion.
In addition, it is already being discussed whether Section 16 Working Time Act must be interpreted in accordance with the EU Directive on Working Time (2003/88) meaning that any working time must be recorded.
In any case, for companies that have not yet had to record working time, the changes will lead to an increase in costs inter alia due to the purchase of software to record working time and its administration.
More significantly, staff costs are likely to grow, as employees will now increasingly claim overtime. All the more care should be taken to ensure that the costs for overtime are kept low by the correct contract design.
Anita Horváth
According to Section 134 of Act I of 2012 on the Labor Code, employers shall keep records of:
Records shall be updated on a daily basis and shall contain the start and end time of any regular and overtime work and stand-by duty.
Records of working time of employees working in stand-by jobs and employees who are relatives of the employer or owner shall be kept in accordance with their extended daily working time.
Overtime does not apply to senior managers (cadre supérieur).
Employers are under no obligation to keep records of working time in the case of:
Employees shall be entitled to a 50% wage supplement or to time off for overtime work performed (a) in addition to the daily working time shown in the work schedule; or (b) over and above the hours covered within the time banking arrangement or accounting period (where applicable).
Where overtime work is ordered on a scheduled weekly rest day (weekly rest period) or a public holiday, a 100% wage supplement shall be paid. The wage supplement shall be 50% if the employer provides compensatory weekly rest day (weekly rest period).
Rules regarding provision of equal time off:
Employment agreements may provide for the payment of fixed overtime fees in lieu of statutory wage supplements (employers shall keep records of duration of overtime nonetheless).
Collective bargaining agreements may not deviate from statutory rules on recording working time, but they may deviate from statutory rules on compensation for overtime work (i.e. calculation of wage supplements) and may elevate the yearly maximum overtime hours from 250 to 300 per employee.
A relatively recent amendment of the Labor Code has made it possible for employers to conclude individual agreements with employees on increasing the yearly maximum overtime by 150 hours (voluntary overtime).
Employees may terminate such agreements unilaterally at any time, with such termination taking effect at the end of the ongoing calendar year.
Hungarian employment regulation is generally compliant with Directive 2003/88 with regard to the recording of working time and overtime work. Labor inspectorates tend to scrutinize record-keeping obligations very strictly. Accordingly, we expect no significant impact on Hungarian employment regulations or on the practice of the Labor Authorities.
However, the CJEU judgement in case C‑55/18 may result in a review of the compliance of the Labor Code with Directive 2003/88 as regards some of the exemptions from working time recording, especially the exemption for job-sharing arrangements.
Davide Boffi
According to Italian law, the employer does not have any specific obligation to record working hours.
Working time is provided for by Legislative Decree no. 66, dated 8 April 2003, which sets a limit of 40 working hours per week as a normal working time, and by collective bargaining agreements if applied by the employer.
Not applicable.
Pursuant to art. 5 of Legislative Decree no. 66/2003, overtime discipline is set forth by collective bargaining agreements (CBAs) if applied by the employer.
If no CBAs are applied, overtime shall be allowed:
Overtime must be compensated by the wage increases provided for by the CBAs. As an alternative to, or in addition to, wage increases, employees may be entitled to compensatory rest periods.
The employer is entitled to request the performance of overtime from part-time employees, within the framework of provisions set forth by law and by the CBAs.
Overtime performed by executives or highly qualified employees (e.g. middle managers) shall not be compensated since these categories are not subject to any duration limit of the working time.
According to Italian law, CBAs can regulate the implementation of the rules on working time and overtime.
Furthermore, with regard to overtime, CBAs may provide for a prior consultation and periodic updates of the employees’ representatives.
Italy has correctly implemented the European directives concerning certain aspects of the organization of working time (e.g. minimum periods of daily rest, weekly rest, annual leave, breaks and maximum weekly working time limits). Indeed, Legislative Decree no. 66/2003 provides for a specific discipline of all the working time aspects, including overtime.
Nevertheless, in light of the recent CJEU judgement in case C‑55/18, national regulations shall need to be implemented to introduce a general obligation for the employer to provide “an objective, reliable and accessible system enabling the duration of time worked each day to be measured”, which is currently absent in the Italian statutory framework.
As pointed out by the CJEU, national law shall determine specific arrangements for implementing such a system.
Reasonably, the implementation of a system recording the duration of working time performed by the employees will likely lead to:
Christel Dumont
No. There is no statutory obligation in Luxembourg to record working time.
Overtime is:
The labor code only foresees two cases where overtime can be paid:
In specific cases, employers are obliged to notify or obtain authorization from the Labor Ministry (ITM: Inspection du Travail et des Mines) for overtime. In these cases, the employer shall request the opinion of the employee representative.
These cases are:
Legal reform might be necessary.
Yes, according to article 4:3 of the Dutch Working Time Act, the employer is obliged to keep a proper record of the working and rest times.
Under Dutch law, employees are entitled to the minimum wage for payment for overtime.
However, this does not apply if the salary divided by the total worked hours’ amounts to at least the minimum wage (€1,615.80 gross per month as of 1 January 2019).
CBAs may not deviate from statutory rules on recording working time, they may however deviate from statutory rules on compensation for overtime work (i.e.: provide for arrangements in favor of the employee).
There is no legal impact, as employers are already obliged to keep a record of the working time.
Aleksandra Minkowicz-Flanek
Yes. According to the Polish Labor Code, employers, as a rule, must keep working time records for all employees.
This is in order to determine the correct monthly remuneration for work (including overtime pay) and other work-related benefits.
The manner in which such a working time register should be kept is however, not regulated by law.
The employer keeps a working time record for every employee, specifying, amongst others:
However, the employer is not required to register the working hours in case of specific groups of employees such as:
Overtime is compensated by:
Overtime allowance is:
The employer may also grant the employee time off in exchange for overtime work (in such a case, the employee is not entitled to overtime pay):
This may not reduce the employee's remuneration due for the full monthly working time.
Employees employed on a part-time basis are entitled to:
In the collective bargaining agreement or internal by-laws (remuneration rules), the employer may agree more beneficial conditions for employees than those set out by law in the.
If trade unions operate at the employer, the CBA and remuneration rules must be agreed with them.
Works Councils, if such exist at the workplace, are not involved in this process.
Polish law is generally compliant with the EU law in this respect and we do not expect any major amendments.
Tiberiu Csaki
Yes, Article 119 of the Labor Code requires the employer to keep a record of daily working hours for each employee. The record must indicate the start and end of the working time.
Moreover, the record may be subject to the control of the labor inspectors, and the sanction for those who fail to comply is between 1,500- 3,000 RON, according to article 260.
The employer must keep records of the hours worked by each of the mobile employees or the employees who work from home according to the terms and conditions agreed with the employees and depending on the specific work they carry out.
No exemptions.
According to Article 122 and 123 of the Labor Code, overtime must be compensated with paid time off within 60 calendar days after the performance of the overtime.
If the compensation with paid time off is not possible within 60 calendar days, the employee is entitled to receive an allowance calculated pro rata according to the overtime period.
The overtime allowance amount is negotiated and included either in the applicable collective labor agreement or in the individual labor contract, as the case may be, and cannot be lower than 75% of the base salary.
In the absence of a union, employee representatives may negotiate the overtime allowance amount to be included in the collective labor agreement.
No impact, the obligation to record the working time has been already implemented in Romania since 2017.
Marina Ryzhkova
Yes. According to Art. 91 (4) of the Russian Labor Code, an employer is obliged to keep a record of time worked by each employee.
Under Art. 152 of the Russian Labor Code, the first two hours of overtime shall be compensated by not less than one and a half times the amount, for subsequent hours – not less than twice the amount. Specific measures of payment for overtime work may be determined by the collective bargaining agreement, local normative act, or employment contract.
Instead of higher payment, employees may request additional vacation to compensate for the overtime, but not less time than the overtime worked.
Under Russian law, the employer must obtain written consent to the overtime from employees, and take into consideration the opinion of the elected body of the primary trade union (if any).
If written consent of employees has been obtained, the employer is not obliged to take opinion of the elected body of the PTU into consideration in limited cases, namely:
Thus, if the employer is unionized, it would be required to consider the opinion of the PTU before asking employees to work overtime.
Not applicable, as Russian law is not subject to EU Directives.
Linda Mendelová
The employer is also obliged to keep a record for temporarily assigned employees at the place of work of those employees.
There are no exceptions to the statutory obligation to record working time for employees working based on an employment contract.
However, for employees working based on agreements other than an employment contract, there are the following exceptions:
Overtime is work performed by an employee, on the instruction of the employer or with the employer's consent, which exceeds the standard weekly working hours (max. 40 hours), outside the standard schedule of working hours and shifts.
An employee may be ordered to work a maximum of 150 hours of overtime work within one calendar year. The employee can work another 250 hours of overtime work within a calendar year upon agreement with the employer, so the total scope of overtime for an employee is 400 hours per calendar year.
The total scope of overtime work may not exceed on average 8 hours per week calculated over a period of no more than 4 consecutive months, unless a period up to 12 months is agreed with the employees’ representatives.
An employee is entitled to its wage, plus a premium of at least 25% of his/her average earnings (35% for employees performing risky work) for overtime hours worked. Alternatively, the employer and the employee can agree that instead of the premium for overtime work the employee will take compensatory time off equivalent to the overtime hours worked.
With managerial employees it is possible to agree in writing that the payment for overtime work is included in his/her salary up to 150 hours per calendar year.
The extent and conditions for overtime shall be introduced upon agreement with employees’ representatives.
The Slovak Labor Code is generally compliant with Directive 2003/88 as regards recording of working time and overtime work and with the CJEU judgement in case C‑55/18.
The current Slovak case law also tends to interpret this obligation of the employers rather widely. Thus, we expect no significant impact of this ruling on the Slovak labor law relations.
Galip Selcuk
There is no statutory obligation in Turkey to record working time.
Under the Turkish Labor Law No. 4857, overtime work is defined as any work performed beyond the normal working hours in a week (i.e. 45 hours). If the employee works more than 45 hours in a week, he/she is entitled to overtime payment.
In companies, where salaries are paid on a monthly basis, the hourly salary is calculated first and then overtime work is remunerated in accordance with one and half times that hourly rate (i.e. salaries for each hour of overtime include an additional payment of 50% of the normal hourly salary). The payments for overtime work must be made at the end of the relevant month, when the employees’ salaries are deposited into their bank account and the payrolls/payslips have to be issued accordingly by the employer.
The employee performing overtime work may choose to use free time of “1 hour and 30 minutes” for each hour of overtime work, instead of overtime payment. If the employee chooses the free time, he/she must submit this request to the employer in writing. The employer must allow the employee to use the requested free time within six months of the day when the overtime work was performed.
The employee’s prior written consent is necessary for overtime work, and it can be included in the employment agreement or obtained separately.
According to the Court of Appeals’ decisions on overtime work, if:
Therefore, depending on the amount of the salary and overtime work hours, the existence of such a clause may be sufficient to counter employee claims for payment of unpaid overtime work.
If the overtime wages are not duly paid, an employee is entitled to terminate the employment agreement based on just cause and to request severance compensation and the unpaid overtime work wages together with the accrued interest within the 5 years from the due date.Depending on whether or not the payslips include accrued overtime work hours and employees’ signatures, the employees may prove overtime work even through witness statements.
Ryan Carthew
Yes. Regulation 9 of the Working Time Regulations 1998 provides that employers must keep records of working time. The records must be sufficiently adequate to demonstrate compliance that the Regulations’ requirements relating to maximum weekly working time, maximum weekly working time for young workers, limitations on night work, limitations on night work of young workers, health assessments of night workers and rotating night workers to day work.
There is a statutory requirement to retain these records for a minimum of two years.
Record keeping requirements only apply to the extent that the relevant statutory requirements apply. There are various categories of workers who are either wholly or partially exempted from the requirements of the Regulations.
Further, some statutory requirements (for example, maximum weekly working hour requirements) can be excluded from application by agreement with employees. In these circumstances, there is no requirement to keep records. Further, there is no requirement to keep records of time, which does not qualify as "working time" under the Regulations.
There is no statutory obligation for employers to pay overtime if an employee has fixed hours he or she is not automatically entitled to extra payments for work performed in excess of normal hours. If an employee is paid by the hour, there is no statutory right to special rates for work performed in excess of normal hours, nor at a particular time.
An employee will only be entitled to overtime payments and/or penalty rates if this right is set out in their employment agreement, or in a collective agreement, which applies to their employment.
If trade unions are recognized by an employer (voluntarily or via the applicable statutory procedure) they will be entitled to propose agreement on arrangements relating to working time and overtime, which can be included in the terms of a collective agreement applicable to one or more employers. This can be agreed by negotiation or arbitration if arbitration is agreed. However, outside the public sector only a small percentage of employees are subject to recognized trade union arrangements and/or collective agreements.
This decision applies more stringent requirements on the recording of working time than has been applied by UK legislation. The UK Regulations only refer to the requirement to keep "adequate" records and to not explicitly require employers to record data to show that daily and weekly rest periods requirements are being complied with. The ECJ decision makes it clear that there must be an accurate system to measure the time worked by workers each day to ensure that rights can be enforced, irrespective of the terms of their contracts. This will mean more stringent time recording requirements while the UK remains in the European Union.
Volodymyr Monastyrskyy
Employers have an obligation to record the time worked by an employee.
There are three types of time record:
A daily record applies when the daily duration of the work is the same each day.
A weekly record applies when the daily duration of the work varies by days, but the entire duration cannot exceed 40 hours per week.
An accrual record applies when business process cannot be interrupted and a daily or weekly record of time cannot be established for this reason. The accrual record period can be decade, quarter, six months, period of agricultural works, duration of maritime tour etc. The duration of rest between the shifts may not be less than twice the duration of the preceding shift.
Overtime work is work performed by an employee on the instruction of the employer, which exceeds normal working hours. As a rule, normal working hours constitute 40 hours per week.
Overtime is paid at double rate.
Overtime requires instruction of the employer and consent of the trade union (if created).
Overtime cannot exceed 4 hours during two consecutive days and 120 hours per annum.
Overtime can be applied in limited cases only and is not permitted for a woman who is pregnant or has minors under 3 years old, minors under 18 years old and students of general or vocational schools.
Overtime is permitted upon consent of:
Not applicable, as Ukrainian law is not subject to EU Directives.