A huge disparity has evolved over the last few years between companies’ obligations to maintain detailed timekeeping records and the reality of day-to-day operations in many businesses. Currently valid regulations no longer satisfy modern-day needs and the multitude of working models that currently exist in many industries. That, in turn, gives rise to considerable legal uncertainty.
Yet the damage to a company’s reputation can be considerable if they are inspected and found to be in violation of the rules, particularly if inadequate time recording methods become public.
Against this backdrop and after lengthy negotiations with social partners, the Federal Council has succeeded in reaching an agreement on the cornerstones of “easing” the current time recording rules. The new regulations are expected to enter into force by the end of the year.
Which rules currently apply?
Under existing law and the practices currently used by authorities, nearly all of a company’s employees – except those in senior management – must record their daily working hours whereby a large majority of those employees must record the precise hours they have worked, as well (i.e. what time they start and finish work and any breaks taken).
What will change?
In the future, employees who meet certain requirements will no longer be required to record their hours or, if still required to do so, they can keep track of these in a simplified form. The hurdles for meeting these requirements, however, are high. Employees will not be required to record their hours at all if all of the following conditions are met:
- they have a very high level of scheduling autonomy
- they earn a gross salary of CHF 120,000.00 (incl. any bonus) per year which is subject to AHV contributions
- an agreement to this nature has been made within the scope of a collective employment agreement (CEA) and the employee has signed an individual waiver agreement
Additionally, employees with a large degree of scheduling autonomy should be allowed to enter their working hours in a simplified format. Specifically, this category of employees can be freed from the requirement to record precise times, yet not the duration of the time they work. That means they “only” have to document the number of hours worked every day, but will not have to provide any details about what time they started or finished work and any breaks taken.
To take advantage of this simplification, however, all of the following requirements must be met:
- a collective agreement is reached, whereby potential negotiation partners for an agreement of this nature could be employee representatives, an HR committee or an ad-hoc project group made up of employees
- this collective agreement must define measures which ensure that
(i) provisions governing working hours and breaks are complied with and employees are protected against overwork and unhealthy overtime (the focus is probably on a work-life balance as well as health and safety policies, etc.) and (ii) support is guaranteed on equal terms (periodic exchange between employer and employee).
What do the changes mean for Swiss employers?
If a company is already party to a CEA, the new rule will open up the possibility of releasing any employees, earning at least the minimum wage and with a flexible working model, from their timekeeping requirements. However, flexible working hours are typically an exception, particularly in industries with a dominant CEA.
In the case of companies not yet party to a CEA, the hurdle for exemption from timekeeping requirements will probably be too high, if the desire for an exemption even exists. All that remains, then, is the option of relieving employees, with (at least) significant autonomy in terms of how they schedule their working hours, from the obligation of recording when they start and finish work and when they take breaks.
Since it is well known in many companies that timekeeping is already being recorded in this, or an even more relaxed, manner (if at all), the option therefore hardly represents any simplification. Instead, the new formal requirements will have to be implemented within the company, specifically to prevent the company from failing the significantly more frequent and more stringent inspections that can be expected to follow.
In other words, for many companies this change is a “simplification” in that it establishes legal certainty and permits compliance which, in the end, enables them to avoid administrative or even criminal penalties, as well as considerable damage to their reputations. On the other hand, ensuring that the formal requirements are met is a complex process requiring the impact of the new regulations to be analyzed and the preparation of an implementation concept.