Following a new ECJ ruling delivered earlier this month, all companies operating in the European Union will be legally obliged to track employee work hours. Sparked by a recent Spanish lawsuit tackling unregulated overtime, the ECJ ruling offers workers new hope in the fight against “wage theft” and unhealthy schedules.
But how effective is this change, exactly? Can a method historically used to control workers now support their empowerment? And in the absence of any clear guidelines of how to put this into practice, how can workers be sure time tracking will protect their interests instead of those of employers?
Before we get into what this ruling means, let’s take a look at where it all came from.
Earlier this month Spanish trade union Comisiones Obreras (CCOO) won a landmark case against the Spanish subsidiary of Deutsche Bank, requiring the bank to introduce a system to record its employees’ daily hours. The main issues in question related to calculating overtime hours – 54% of which go unrecorded in Spain – and protecting obligatory rest.
The case essentially bolstered the EU’s working-time directive, which restricts employers from making employees work more than 48 hours a week, and grants people at least 11 consecutive hours of rest every day. The court’s decision was subsequently rolled out to the rest of Spain by Royal Decree-Law, but now the ECJ too has passed its own ruling, extending its requirements to all EU companies.
In short, the ruling requires all EU employers to set up “an objective, reliable and accessible system” for tracking employee working hours every day.
The ruling is explicitly intended to protect workers against potential workplace abuses, and stresses that “the worker must be regarded as the weaker party in the employment relationship.” The introduction of time tracking is, therefore, seen as a means of “prevent[ing] the employer from being in a position to impose a restriction of his rights.”
However, the ECJ ruling doesn’t actually provide any specific requirements or guidelines for how to go about this. Instead, it states 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.”
Clearly, from a worker standpoint, there’s a lot to be excited about. In the first instance, accurate time tracking provides irrefutable, objective proof against unlawful overtime. The ECJ itself words time tracking as “an item of evidence essential for demonstrating that they [employees] have worked in excess of maximum working time limits”.
This is a crucial first step towards ending flat-rate work and unpaid overtime. But for people like Annelie Butenbach, a member of the German Trade Union Confederation (DGB), overcoming this abuse goes further. “This is not just wage and time theft,” she says: “within a year, employers line their pockets with approximately €18 billion.” In this context, time tracking becomes a necessary tool for building fairer, more accountable workplaces.
But it can also help protect employee safety and health. Beyond purely clocking in and out, robust time tracking can detail the time employees spend on different tasks, when they take breaks and how long breaks last. It can document off-site and out-of-hours work, as well as occupational travel, which are frequently overlooked. Ultimately, it offers employees full visibility over their work schedule – allowing them to address unhealthy workloads and the sum stress, anxiety and exhaustion that come with it.
There’s also the promise of greater self-actualization in there too. By tracking their work, employees can review how much of their daily activity actually falls under their contracted job description, and then use this evidence to seek redress from their employers – as this health tech case showed.
Beyond employee rights themselves, there are obvious benefits to wider employee self-management. Time tracking can help employees master their workflow and environment by revealing exactly how they use their time. By understanding what they work on, how long different tasks take and where they get distracted, they can create the conditions for a healthier schedule and more cognitively rewarding “deep work”.
Of course, a lot of people are still sceptical about the impact time tracking will actually have in protecting workers, and it all relates to the issue of agency.
For starters, at the moment employees can actually opt-out of the directive if they want to work more hours. While this sounds great in theory – it’s the worker’s choice, after all – in practice, many fear workers will actually be expected to do so by their employers.
Then there’s the issue of who’s doing the tracking. Since the ECJ has given no specifics on how employee hours should be tracked, there’s a lot of room for potential misuse of time tracking. While the responsibility for creating accurate time records clearly lies with the employer, time tracking needs to actually serve the interests of employees.
That starts with workers actually feeling safe tracking their time. Unfortunately, many tracking tools carry in-built power biases which work against employees. They can be highly invasive, taking screenshots of an employee’s screen, geo-fencing their location and even monitoring their keyboard activity.
If time tracking is to protect worker rights, it also needs to protect their professional dignity and right to privacy. Employers need to be extremely careful when choosing a time tracking solution, ensuring it operates on trust instead of intimidation. An employee-led time tracker will ensure any tracked data is always private to the individual; workers will have the space to review their activity and report what is relevant to their employer.
But, obviously, this would place the burden of time tracking on workers themselves – as if ensuring fair work practice is their responsibility. Luckily, technology has advanced enough to automate the entire time tracking process, so employees no longer have to do it manually. But some companies may not wish to pay for the convenience, and instead expect employees to use spreadsheets or manual timers.