In many jobs, the act of clocking in is almost a part of the daily routine of employees. By law, all companies must register the working hours of workers, so that the administrations can know exactly the actual hours of time that the staff spends in the office. Counting, therefore, overtime or possible abuses of basic labor rights. Let us remember that the establishment of the general working day registration office arose as a result of Royal Decree Law 8/2019, of March 8, on urgent measures for social protection and the fight against job insecurity.
Although some companies use automatic clocking systems through applications or even devices at the entrances and exits of the center, others implement timers to know the actual working time in detail. But, should we pause it when we take breaks? What if we have to go to the bathroom? We asked the expert lawyer in labor rights, Luis San José Gras, partner in the Labor Law area of AGM Abogados, about what the company can and cannot do when registering the working day.
The internal regulations on the control of working time and the way to carry it out are regulated in article 34.9 of the Workers’ Statute. According to these guidelines, the company must guarantee the daily record of the working day, including the specific start and end period of the work day for each of the workers, without prejudice to the flexible hours that may exist or whether they are contracts. a part time. In addition, it is also included in the European Union, the Court of Justice of the EU affirmed that, to ensure the useful effect, the Member States must impose on employers the obligation to implement an objective, reliable and accessible system that allows computing the working day daily work.
We must bear in mind that working time will be computed when the worker is at his job. This means that rest periods, meals or personal moments in which the corresponding tasks are not being carried out will be eliminated. However, a new ruling must be taken into account, the Superior Court of Justice of Madrid (TSJM) that has considered traveling to the workplace as part of the working day.
Personal breaks not included in the working day
“As a general rule, the effective working day must be recorded, that is, that the worker is at his job, for example if the employee provides his services in a factory and has to change his clothes, until has been changed and is placed in his position to start providing his service, it will not be considered the time to sign up”, explains San José Gras.
For this reason, all breaks that are not related to physiological needs, such as going to the bathroom, must be recorded. “If you take a sandwich, lunch or dinner, or coffee break, you must pause or clock in again, since the worker stops your benefit. When you restart the activity, you can clock in again,” recalls the expert.
This also applies to smoking break time, especially when going to and from the workplace. We can conclude, therefore, that only work time is considered when the corresponding services are provided. This is because in December 2019 the National Court issued a ruling that it was valid to discount breaks to drink coffee or smoke from effective working time.
In order for them to be adequately controlled, all companies must have precise time control systems, as well as mechanisms for employees to view and manage their day-to-day activities.
Recover non-effective working time
These breaks, as they are not considered effective working time, will not be counted in the working day. In this way, the worker will have to lengthen his day to be able to comply with the corresponding eight hours a day. “Smoking a cigarette, going to the bank or buying breakfast, all those minutes must be recorded both at the exit and entrance of the company and since the provision of services is paralyzed, they will not be computed,” reports Luis San José Gras.
Although going to the bathroom cannot be discounted, calls or other personal issues can. “There are companies that prohibit private calls and even the use of mobile phones,” says the lawyer.
Tools or systems to control time
The specialist points out that there is no specific regulation that companies must implement to make this time control effective. However, he must carry out the most convenient way for the company. As the expert from AGM Abogados rightly points out: “The method of compiling the filing must allow the worker himself to be the only person capable of filing and/or modifying the record. From a simple Excel sheet to through a mobile app; cards; QR code scanner, clocking software, fingerprint or retina scan. What is really mandatory is that trust is guaranteed and that it is objective”.
