When does your workday start? Working hours called into question

Does an employee need to change before his shift? Or does he have to log into systems before he can start his workday? Can the employee then argue that this falls under working time and thus he should receive pay? However, the employee's actual work has usually not yet begun. The question then regularly arises as to what constitutes an employee's "working time. In this blog, we discuss two practical examples where this question was at issue.  

What is working time

The Working Hours Act provides that "working time" is the time the employee performs work under the authority of the employer. It thus involves two requirements:

1. authority of the employer; and
2. work performed by the employee.

Under the (statutory) right of instruction, the employer can exercise authority over the employee. For example, he can prescribe the manner in which the employee must perform his work. Determining the usual working hours also falls - within the framework of the law - under the employer's right of instruction.

The Supreme Court ruled back in 1931 that for labor to be performed it is not important that there be an effort of force. Being at the employer's disposal is also working time. Thus, an employer may require an employee to begin work at a certain time. Even if this requires the employee to be present a little earlier. In principle, this does not simply fall under working time.

Pay

If there is working time within the meaning of the Working Hours Act, it does not immediately mean that it must be paid in return. The Working Hours Act regulates maximum working hours and minimum rest periods. It is not regulated by law whether and how working time must be remunerated. Sometimes agreements are made about this in the employment contracts, for example compensation in case of on-call shifts. However, in many cases it will be logical and reasonable for working time to be remunerated. 

Login is working time

In a recently published ruling, the subdistrict court ruled that logging in can also be working time. The employees in question had to start logging in at a call center ten minutes before the start of their shift. This was because they still had to log into ten different systems and so they would be ready to answer calls immediately at the start of their shift. This was also stated in the personnel regulations declared applicable in the employment contract:

Starting at 9 a.m. means being ready at exactly 9 a.m. to take or make your first call. So always report to your supervisor 10 minutes before your shift starts to ensure you are never late.

No non-binding advice

The subdistrict court ruled that this is not non-binding advice. In addition, the employer acknowledged that employees who log in later than 9 a.m. will receive a warning and that repetition may result in sanctions such as dismissal. There is therefore an obligation here. Thus, the subdistrict court concluded that the "ten-minute rule" is working time. It is, after all, preparatory work that takes place under instructions from the employer. An overtime allowance was agreed upon in the employment contract and the collective bargaining agreement. These ten minutes must therefore be paid (retroactively) according to this overtime rule.

Being late

Another employer also asked its employees to be present at the workplace ten minutes before the start of their shift. This rule was included in the house rules that applied to the employment contract and were signed by the employees. An employee refused to be present ten minutes before the start of her shift and was therefore structurally late. She found it unreasonable that she was required to be present ten minutes before her working hours, without compensation. The employer then decided to proceed with immediate dismissal.

The subdistrict court ruled that if the employer actually believes that it is essential for the proper performance of the work that the employees must be present ten minutes before the start of their shift, that must be reflected in paying the employees wages for that time. Then there is regular working time.

Because there is no pay tied to the ten minutes the employee must appear at the workplace earlier, the working time is non-essential. As a result, structural failure to follow this rule does not provide an urgent reason justifying summary dismissal.

Conclusion

An employer may require his employees to begin work at the agreed upon starting time. Admittedly, working time need not always have wages attached to it.

However, in most cases, this working time will have to be remunerated. Thus, consider, for example, the situation where the employee, at the employer's request, performs preparatory work before the shift begins.

Do you have questions about what does and does not constitute working time for your employees? Or do you have other questions about working hours and compensation. Please contact Lonneke Nouwen or Sander Poelman. They will be happy to help you further.