The employer is obliged to protect the health and personality of his/her employees. In particular, it is the employer's duty to ensure that employees do not exceed the legal limits of the working week, that they take their breaks and that they have sufficient rest time. Otherwise, in case of an accident or burn-out, the employer may be held liable.
Recording of working hours
In order to control the working time of his/her employees, the employer is obliged to record a certain amount of information such as working hours, overtime and rest days in certain cases. The purpose of this data is to enable the labor inspectorate to verify that the time framework of the Labor Law is being respected.
Disparity between law and reality
In practice, managers have a certain amount of autonomy with regard to working hours and work the hours necessary for the proper functioning of the company. Many of them do not systematically stamp their breaks or overtime hours.
In view of this discrepancy between law and practice, the legislator has tried to simplify things. Relief is possible! There are three applicable regimes: classic registration, simplified registration and waiver of registration.
The simplified registration allows the employer to register only the daily working hours. However, it is subject to numerous conditions. These include the need for a collective employment contract and the requirement for a certain degree of autonomy in the scheduling of employees.
Waiver of registration
Under this system, the employer is no longer obliged to register the working time. This is a special regime that can, depending on the circumstances, affect the health and personal life of overzealous employees who accumulate overtime.
For this reason, only a specific category of employees can legally waive the recording of working hours. Moreover, such a waiver is subject to various conditions, including the amount of the salary and the employees' autonomy with regard to working hours. Furthermore, it is only possible if it is provided for in a collective employment contract.
It is out of the question for a secretary who works fixed hours to give up the recording of working hours!
Senior management positions
are not subject to the Labor Act. They have to work all the hours necessary for the proper functioning of the company without any limitation of their working time. They are not subject to the Labor Act. Thus, the provisions on rest periods and breaks do not apply to them.
As a result, the employer is not obliged to record their working hours, without their express waiver. But beware! Not all executives are in senior management positions.
Generally, employees appreciate being able to work from home and save themselves long commutes. However, sloppiness and abuse are never far away. Some employees take advantage of the opportunity to spend quality time with their families and make up for lost time in the evenings or on weekends. Without the cues provided by co-workers, it is also easy for employees to forget to take their breaks or work overtime.
Out of sight, out of mind? No! Employers are still required to keep track of their employees' working hours. He or she will have to make sure that his/her employees get their rest time and that they do not work at night or on Sundays without authorization.
The time-stamping system can be abused by malicious employees. Some employees ask a colleague to stamp for them in order to hide from the employer that they arrived late, left work early or took a particularly long lunch break.
In order to fight against these abuses, the employer is tempted to set up a video surveillance or electronic monitoring system to verify that the employee is not manipulating the stamping system. This surveillance can only be put in place under certain strict conditions.
When the employer catches the employee in flagrante delicto, he/she can terminate the employee’s contract with immediate effect, with or without prior warning depending on the circumstances.