Daily Registration of Employee Working Time in the European Union: Practical Recommendations for Employers

The Context

On May 14, 2019, the Grand Chamber of the ECJ issued a Judgment declaring that EU Member States must require employers to register the daily working time of their employees (ECJ Judgment, Case C-55/18—Deutsche Bank S.A.E.). The Judgment resolves a controversial legal debate that originated five years ago in Spain. In short, the ECJ declared: "Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured." For further information about this decision, please refer to Jones Day's White Paper (June 2019), "European Court of Justice: Employers Must Implement a Daily Working Hours Registry."

On September 26, 2019, labor and employment lawyers from seven of Jones Day's European offices and our Dallas Office conducted a webinar titled, "Practical Consequences of the ECJ Decision on the Daily Registration of Working Time in Europe." A thorough review of legislation throughout the European Union led us to conclude that EU Member States fall into three groups with respect to the ECJ's decision: those countries that are currently in compliance with the ECJ's Judgment (i.e., Spain, France, and the Netherlands), those that are not in compliance (i.e., Germany, United Kingdom, and Italy), and those in which compliance is unclear (e.g., Belgium). If employers are not already complying with the ECJ's Judgment, they should soon begin taking steps toward compliance if they want to be on the safe side, given that existing law may be interpreted consistent with the ECJ's Judgment and countries that are not in compliance may pass legislation to align existing law to the ECJ's Judgment.

Practical Recommendations for EU Employers

We offered various practical recommendations in our webinar to assist EU employers with compliance with the ECJ's Judgment, including several recommendations based on practices used by employers in the United States, where employers routinely monitor daily employee working time. Such recommendations included:

• Electronic Registration: Technology can be used to monitor employees' daily working time. Electronic registration systems that employees use to clock-in and -out when they arrive and leave work, respectively, or go on break (if breaks must be registered in the jurisdiction), are commonly used to track daily working time. Such systems are more objective and reliable than manual registration and comply with the requirements of the ECJ Judgment. With respect to office employees in particular, companies tend to create a series of acknowledgements confirming that employees have accurately entered their working time.
• Track and Trace Systems: European companies are using track and trace systems more often. Employers need to be cautious about how they implement such systems, given the risks of intrusion into employees' privacy rights.
• Policies and Guidelines: Similarly to what is done in the United States, policies should be tailored to the workplace and include key components such as informing employees that they must get approval from their manager before working overtime (although employees should be paid for overtime they work without authorization) and that the employer will not retaliate against employees who raise overtime issues and complaints to Human Resources.
• Training: Managers should be trained on the employer's policies and applicable legal regulations to ensure that: (i) they understand the issue and costs at stake, most notably those arising from employee litigation, and hence that (ii) they will be watchful of their subordinates' working time, workload, and compliance with internal rules and external regulations.
• Disconnection Rules: For employees whose working time is difficult to monitor accurately, such as sales employees, some employers have implemented strict disconnection policies. The employer can assist employees in complying with these policies by cutting off access to company systems outside of working hours, automatically blocking emails received outside of working hours, and other solutions that prevent employees from connecting to workplace systems after hours. 
• Periodic Audits: Companies should regularly conduct audits to verify the accuracy and effectiveness of their systems and policies for registering working hours. Such audits often will assist employers in detecting noncompliant practices and limiting the risks of costly overtime litigation.

Obviously, employers must ensure that all mandatory and conventional legal restrictions in their country are followed prior to implementing any of these measures.

Given the costs of employee working time litigation, employers should work to maintain compliance and stay abreast of legal developments. Legal requirements undoubtedly will evolve, given recent trends reflecting an increase in remote work by employees and the wide availability of technology that facilitates remote work.