According to Teleperformance's scheduling rules, employees were required to begin their work at 9:00 a.m. However, employees had to log into multiple systems before starting their tasks, which took several minutes. To ensure they were ready to begin work at 9:00 a.m. sharp, employees were expected to be in the office ten minutes before their official shift started each day. A Teleperformance employee disagreed with this scheduling requirement, leading to a case before the Dutch Supreme Court last September. The Court ruled that the call centre employee should be paid for the ten minutes he spent each day logging in before the official start of his shift. Ruben Houweling, Professor of Labour Law at Erasmus School of Law, discusses the case and its potential implications.
When is time considered working hours? The Working Hours Act in the Netherlands is largely based on the EU Working Time Directive, which defines 'working hours' as the period when an employee is under the employer's authority. Houweling explains: "These regulations are very binary: it is either working time or free time. There is nothing in between. There is no 'working free time' or 'free working time.' You are working, or you are free."
The role of login time
The case of the Teleperformance employee revolved around whether the ten minutes he spent logging into systems before starting work should be considered working hours. Following the EU Court of Justice, Houweling notes that the Dutch Supreme Court asserts that one must determine if there is an 'objectively significant restriction on the ability to freely allocate time between logging in and starting work'. To clarify, Houweling provides an example: "If my employer requires me to be present fifteen minutes earlier for a lecture because the projector and computer systems need to start up, then simply being required to be in a particular place is enough to constitute an objectively significant restriction on the free allocation of my free time. Therefore, 'on-call duties' are always considered working time." He explains that there can be a difference between on-call duties and working from home, where the restriction may be less intrusive.
Are employees entitled to extra pay for unpaid working hours?
We asked Houweling if employees should receive additional pay for unpaid working hours. Houweling stresses that working hours relate to rest periods and do not inherently imply payment. He explains that parties should make agreements on this. He adds: "We have a statutory minimum hourly wage in the Netherlands. That is the baseline. However, suppose I agree with my employer to earn €3,500 a month, including potential overtime. In that case, a few extra hours will not entitle me to additional pay unless – as the Supreme Court ruled – this violates fairness and reasonableness. For instance, if substantially more hours are consistently worked than originally agreed upon."
As with Teleperformance, many companies expect employees to arrive earlier to start on time. However, should all these employees be paid for the time they spend before their shift when they are objectively significantly restricted in the free allocation of their time? Houweling comments: "Some employees may have a claim against their employers. However, note that you might conclude you worked more hours than agreed but did not receive additional pay because this was included in your contractual salary. In a significant number of collective bargaining agreements, certain startup or handover time is either unpaid or compensated at a fixed (lower) rate."
The fine line between advice and obligation
Teleperformance's rules indicated that employees were expected to check in with their supervisor ten minutes before their shift began, which was presented as a suggestion. This raises the question: Where do we draw the line between voluntary advice and a requirement for employees? Houweling explains that each case must be assessed individually, with the critical question being whether an employee's free use of time is objectively and significantly restricted. He adds: "One must keep in mind that many employees work in economic and legal dependency. Even if an employer phrases it nicely, the suggestion may be less voluntary than it appears. It is better to be clear on this – especially as an employer."
"Many employers will need to review their protocols, employment terms, and collective bargaining agreements to ensure they are not unintentionally demanding more working hours than expected and to review what this means for potential wage claims. Think of handovers in healthcare, early starts on construction sites, alternating shifts in teams, and so forth. First, this leads to a scheduling challenge: How long can I schedule this employee continuously? A related question is whether those employees are still entitled to pay," Houweling notes.
Reimbursement claims and employee rights
The employee who filed the lawsuit against Teleperformance is entitled to back pay for each time he arrived ten minutes early from 2016 to 2021. This ruling does not automatically grant the right to back pay for other employees in similar situations. Houweling explains that they must file a wage claim. "Furthermore, wage claims expire after five years, and employees need to file complaints on time to retain their rights. Additionally, it is worth noting that in addition to back pay, employees may also be entitled to statutory increases, a kind of private law penalty, and statutory interest. This can add up to significant amounts."
- Professor
