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In Short

The Situation: On May 14, 2019, the Grand Chamber of the European Court of Justice ("ECJ") issued a Judgment mandating that EU Member States require employers to register the daily working time of their employees.

The Result: In some European countries, the ECJ's Judgment will require legislative changes. Moreover, employers will need to modify their practices to monitor employee working time on a daily basis.

Looking Ahead: Employers should consider various options to assist them in registering their employees' working time on daily basis. Employers should evaluate these options in light of rapidly evolving employee work styles, which may make it increasingly more difficult to monitor employee working time each day.

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-55/18Deutsche 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:

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.

Two Key Takeaways

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