Waiver of working time registration
The Labor Act and the Code of Obligations require employers to protect the health of their employees. In particular, he/she must ensure that his/her employees are not overworked and that they benefit from the rest periods and breaks provided for by law.
In order to enable the cantonal labor inspectorate to verify compliance with these requirements, the employer must record a certain amount of information concerning the working hours of his/her employees. In principle, the employer must record and register the duration of work, compensatory work, overtime work and the duration of breaks. Under certain conditions, rest days must also be recorded.
The obligation to record working hours is particularly significant. While it is essential to protect the health of ordinary workers, it is not suitable for certain categories of employees, in particular for managers or employees who enjoy a high degree of autonomy in their work.
Given the health protection purpose of recording working time, the waiver of any recording is subject to cumulative conditions of validity. The purpose of these conditions is to prevent any employee from waiving the recording of his/her working hours, at the risk of not recording his/her overtime and not respecting his/her rest periods.
A waiver of the recording of working hours must be provided for in a collective employment contract. If this is the case, a written agreement must be concluded with the employee.
In order to waive the recording of working hours, the employee must earn a gross annual salary that exceeds a certain amount. Is a possible bonus included in this amount or is it only the salary in the strict sense? Is this threshold the same in case of part-time work?
Finally, it is necessary that the employee has a large degree of autonomy in terms of working hours. Indeed, in such situations, it can be particularly difficult for the employer to record the working hours and the duration of the breaks of the employee.