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Overtime: how to prove it if you work remotely? | My Rights | Economy

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On March 8, the Superior Court of Justice (TSJ) of Galicia issued a ruling that dismissed the claim of a worker who asked her company to pay for a series of overtime hours allegedly performed under the remote work modality.

In the case resolved by the Galician court, the plaintiff had recorded her working hours through a computer program created by the company and implanted in the employee’s computer. This, from the months of March to August 2020, computed an excess of close to three hours a day.

The claimant returned to her office work in person (specifically, in the human resources department) and, however, from that moment on, she did not work any extra hours. The social court dismissed her claim because it warned that the alleged overtime recorded only appeared in the phase in which she teleworked and not later, when the company had greater ease in controlling the record. The worker appealed the decision, but the Galician TSJ once again disproved him.

The employee argued that, during the teleworking phase, there had been an increase in the workload. However, the ruling rules out such an extreme, since at that time 75% of the company was in ERTE, no new staff was hired and the work incidents detected were minimal.

In short, the justice system understood that there was a lack of evidence regarding the effective completion of the additional hours claimed during the period of time in which the work was done remotely. It is an issue that, with the generalization of remote work forced by the pandemic, has generated many conflicts that, little by little, are reaching the courts. In this context, the experts explain what are the different ways to prove the excess of working hours during teleworking.

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According to Víctor Canalda, lawyer and professor of labor law at the Open University of Catalonia (UOC), “in the case of teleworking, if there is no record of the working day or it is falsified, the worker will be able to prove excess working hours if they prove connections to the system outside schedules, sending or receiving mail on days off, etc.” The specialist comments on a specific case: “a recent sentence declares a dismissal inadmissible for not having attended to communications from the company during the holidays. Additionally, demanding extra hours from a remote worker would be contrary to the company’s obligations to establish a correct organization of teleworking time in its role as guarantor of psychosocial risks.

The health crisis associated with Covid-19 caused an extraordinary multiplication in the number of remote workers, hastening the regulation of work carried out remotely that was not due to health reasons. However, Law 10/2021, of July 9, on remote work is not lengthy in terms of time registration. The text limits itself to recognizing that the system must faithfully reflect the time that the worker who performs remote work dedicates to the activity.

In evidentiary matters, Lois Rodríguez, senior associate of Labor at Baker McKenzie understands that “a good practice is to influence internal agreements and policies in the need that any overtime must be previously authorized by the responsible person”. She is also in favor of “regularly monitoring the days recorded by each worker to have visibility and control over the hours that are being carried out.”

Víctor Canalda adds that, in agreements between the employer and the worker, “the most practical thing is to record in writing the details of the teleworking relationship, and this is a particular that, indeed, is usually introduced. However, many times standard or stereotyped clauses are applied in teleworking agreements, which are not fulfilled in reality.

Burden of proof

The transgression of the rules and legal or agreed limits in terms of overtime is considered a serious infraction in terms of labor relations, by virtue of article 7.5 of the consolidated text of the Law on infractions and sanctions in the social order. This behavior is sanctioned with a fine, which can range between 751 and 7,500 euros, depending on the seriousness of the act.

The legislator’s tendency to punish these non-compliances more severely is accompanied by a change in the jurisprudential criterion. Rodríguez recalls that “the courts have traditionally maintained that it is up to the worker to prove that he has performed the overtime that he claims.” But, in recent years, a particularity has been detected, according to the jurist: “based on the obligation to have a time record, in those cases in which the company does not have any time record system, this evidentiary requirement is it is making it more flexible, forcing the company to carry out the reverse evidentiary exercise when the worker provides evidence of having worked overtime.”

Professor Canalda points out: “the courts usually differentiate between sporadic and regular overtime. In sporadic cases, the burden of proof will be on the worker ‵hour by hour and day by day′. In the usual ones, the excesses of hours that cannot be refuted by the company through an adequate record of the working day, proving their compensation with rest days in the four months after their completion, will possibly be recognized and the company will be sentenced to pay it. ”.

In terms of evidence, Canalda refers: “currently, in teleworking, the connections and duration of the day are often recorded on third-party servers or applications, so a ‘digital proof’ is created that cannot be falsified or manipulated with ease”.

Computation and registration

In 2019 there was an important regulatory reform, which requires all companies, since then, to register the hours of their workers.

Thus, the company must guarantee the daily record of the working day, which includes the specific start and end times of each worker’s working day, without prejudice to the adoption of time flexibility measures (article 34.9 of the Workers’ Statute).

However, doubts may arise not only about the computation but about the proof of the effective hours. Article 35.5 of the Statute itself requires that the workday of each worker be recorded day by day, and that it be totaled in the period set for the payment of remuneration, delivering a copy of the summary to the worker and the corresponding receipt.

For Lois Rodríguez, “the record of the working day would be a fundamental piece of evidence, but the fact that a certain time has been recorded does not guarantee the recognition of overtime.” Thus, “the judge will have to make a global assessment of all the concurrent circumstances, such as, for example, the guarantees of non-manipulation offered by the time registration system, if those alleged overtime hours had been approved by the company, etc.” .

The introduction of this record of working hours contributes to correct situations of abuse in working hours. The explanatory memorandum of Royal Decree-Law 8/2019, of March 8, the rule responsible for this reform, recalls that if an overtime worked is not paid, it is not quoted for it either, which is detrimental to the affected worker. and also for the Social Security system.

Víctor Canalda believes that “the premise of overtime accreditation is that it is up to the worker to prove it hour by hour and day by day. However, it is possible to find resolutions that temper this obligation if the employee’s schedules are regularly exceeded. Since the obligation to record daily working hours came into force, “this has become a highly qualified means of proof to accredit actual hours and working days, harming companies that fail to comply.”

Thus, the National Court, in a judgment of December 4, 2015, stated that “the registration of working hours, not overtime, is the constitutive requirement to control excess working hours”, so that the lack of registration “places workers in a defenseless situation, which cannot be tempered because overtime is voluntary, since the only means of accrediting it is, precisely, daily control”.

Regulation

Article 35 of the Workers’ Statute considers overtime those that are carried out beyond the maximum duration of the ordinary working day (that is, the one agreed in a collective agreement or in an employment contract between the employer and the worker). The maximum duration of the working day is 40 hours per week of effective work on average in annual computation; In addition, at least 12 hours must elapse between the end of one day and the beginning of the next.

In principle, the provision of additional hours is voluntary, unless its realization has been agreed in a collective agreement or individual contract.

The number of overtime hours cannot exceed 80 per year, although there are some exceptions to this limit, such as hours used to prevent or repair claims and other extraordinary and urgent damages.

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