Working time recording in Switzerland: Legal situation, exceptions and waiver

In Switzerland, employers are required by law to accurately record the working hours of their employees. In this way, the number of hours worked and, where applicable, the number of overtime hours can be reliably monitored and compliance with the statutory provisions on working hours can be ensured. This information must also be made available to the cantonal labour inspectorates so that they can monitor and supervise the lawful observance of the maximum working hours.

The obligation to record working hours arises from Article 46 of the Labour Act (ArG), which came into force in 1996, and from Articles 73a and 73b of Regulation 1 to the Labour Act (ArGV 1) of 1 January 2016.

Why record working hours?

Recording working hours is part of the employer's duty to protect the health and personality of its employees. By monitoring working hours, the employer ensures that employees do not exceed the statutory weekly working hours and that they receive the rest periods and breaks to which they are entitled. On the one hand, this protects employees from being overworked, but also from the risk of working for free, and also reduces the general risk of accidents for which the employer could be held liable. It should be noted that in the European Union, compliance with the maximum working hours is a fundamental right of the employee and that the recording of working hours is an instrument with which employees can assert this right.

Article 73 ArGV 1 states that the employer must keep the following documents relating to an employee's working hours for five years:

• The identity of the employee and the nature of his or her work
• Daily and weekly working hours, including compensatory and overtime work, with time coordinates
• Rest days and weekly compensatory rest periods
• The time and duration of breaks of half an hour or more
• Statutory wage supplements or additional rest periods
• Operational deviations from the definition of day, night and Sunday

If the working hours are regulated by fixed working hours and prescribed breaks, it is sufficient in terms of recording merely to note any deviations.

The different types of working time recording

In principle, the employer is responsible for fulfilling the obligation to record working hours. The employer is authorised to delegate the recording of working hours to the employee, but remains responsible for providing you with the appropriate means to do so. In such a case, the employer must also view and confirm the working hours recorded by you on a monthly basis.

Working hours can be recorded in different ways. For example, employees or employers can record the respective working hours manually, in notebooks or in Excel spreadsheets.

However, working hours can also be recorded using special software that is linked to the employee's ID card when they enter the workplace or can be recorded using an app on a smartphone. Finally, working hours can also be defined by a fixed schedule or shift plan, so that only deviations from this plan need to be recorded.

Tip: Even if your employer records your working hours for you, it is still advisable to document your working hours yourself. This will allow you to keep track of the hours you have actually worked and you can intervene if necessary if you feel that your employer is recording your working hours incorrectly.

What is simplified working time recording?

It is also possible to record working hours in a simplified manner. This applies to employees who can determine the majority of their working hours themselves. The obligation to record working time is retained, but simplified. The employer then only has to record the hours worked each day, but not the breaks and the employee's whereabouts.

For the simplified recording of working hours to be authorised, the category of employees who benefit from it must be defined in a company agreement signed by the company management and the employee representatives.

Difference between extra hours and overtime

Time recording must include extra hours and overtime worked by the employee. These are two very different things. If an employee works more than the weekly working hours stipulated in their employment contract, they are working extra hours. However, if the employee exceeds the maximum weekly working hours stipulated by law (usually 45 to 50 hours per week, in accordance with Article 9 ArG), this is considered overtime.

Employees and employers can agree in their employment contract that up to a certain maximum number of extra hours will be compensated with the monthly salary (Article 321c CO). Compensation in the form of time off is also possible if the extra hours are not to be compensated by wage supplements.

In principle, overtime hours may not exceed two hours per day and may not total more than 170 hours (for a working week of 45 hours) or 140 hours (for a working week of 50 hours) per year (Article 12 ArG). The overtime worked must also be compensated at a ratio of 1:1 or remunerated with a supplement of at least 25 % (Article 13 ArG). However, there is an exception for office staff, technical and other employees and for sales staff in large retail businesses. These employees can only be compensated for a minimum of 60 hours of overtime per year.

What happens if a company does not record working hours?

The competent labour inspectorates check whether the working hours of a company's employees are properly recorded and whether the statutory working hours are complied with. An employer who does not record the working hours of their employees must expect financial consequences.

However, there are also exceptions to the recording of working hours in Switzerland. These exceptions were introduced in particular by Articles 73a and 73b of ArGV 1. These exceptions allow companies to be exempted from the administrative obligation to record working hours in the interests of employers and employees.

These exemptions apply to two types of employees:

• Members of the executive board or senior management
• Employees in the field sales force (who are predominantly mobile)

Apart from these two types of personnel, all other employees are subject to the obligation to record working time unless they benefit from the "exemption from recording working time" regulation. However, such an exemption is only possible with a valid collective labour agreement or GAV and in accordance with Article 73a ArGV 1.

According to the new provisions of Article 73a ArGV 1, certain employees may waive the recording of working hours. The following conditions must all be met:

• The waiver of working time recording must be agreed between the social partners in the collective labour agreement.
• The employee must receive an annual gross salary of more than CHF 120,000.
• The employee must be able to organise their working hours completely independently.
• The employee must sign an agreement to waive the recording of working hours.

In addition, the waiver agreement must specify, on the basis of objective criteria, which category of employees qualify for an exemption from working time recording, and certain additional health measures must be introduced. Otherwise, the employer may be held liable for stress-related accidents or illnesses suffered by employees.

Risk of abuse of flexible working hours without working time recording

These regulations were enacted because it is assumed that in certain and very flexible employment relationships, working hours are based on a strong foundation of trust and therefore no recording of working hours is necessary. However, a study by the State Secretariat for Economic Affairs (SECO) showed that a large proportion of employees with flexible working time models and without working time recording regularly exceed the maximum permitted working hours and, for example, also work when they are ill or should actually be off.

This example once again makes it impressively clear how important the instrument of working time recording is in order to protect employees from exploitation and overwork.

As an employee, you have the right to ensure that your working hours are properly recorded and, in particular, that the maximum working hours are observed. If you feel that your rights to comply with the maximum working hours have been violated or that you need to be compensated for overtime, an employment lawyer can advise you on your individual case and take the necessary steps.