General requirements under the EmpA
When it comes to working hours and rest periods, strict labor law provisions apply to most employees (with narrow exceptions). Among other provisions, the EmpA stipulates that the maximum daily and evening working hours, including breaks and overtime, may not exceed 14 hours in total. In addition, the employee must be granted a daily rest period of at least 11 consecutive hours, which may only be reduced to eight hours once a week, provided that the 11-hour average is maintained over a two-week period.
This provision may be waived in whole or in part by means of special regulations issued by ordinance if it is required in view of the special circumstances of certain groups of companies or employees. The Federal Council used this statutory competence with the EmpAO 2 and recently amended the ordinance through extending the circle of companies that may be subject to exemptions.
Deviating provisions for certain service providers
As of 1 July 2023, ICT companies will benefit from special provisions on working hours and rest periods. Whenever there is international cooperation with project teams located abroad or whenever urgent and unpredictable activities require an increased workload, the period of day and evening work may be extended to a maximum of 17 hours. Furthermore, the daily rest period may be reduced to nine hours several times a week and may be interrupted if working conditions do not allow otherwise. The criteria according to which a company is considered an ICT company is further set forth in EmpAO 2.
In addition, service providers in the areas of auditing, trust and tax consultancy have the option of employing their employees according to a flextime model (annual working time). However, only managing employees or professionals who have a certain gross annual income and a certain level of academic qualification can be employed under the annual working time model. The flextime model is agreed individually in writing (including annual target hours and the type of compensation for overtime hours (time off of at least the same duration or a salary supplement of at least 25%)). As a result, the general rules on maximum weekly working hours and statutory overtime do not apply. Moreover, the daily rest periods may be reduced to nine hours, provided that an average of 11 hours is met over a period of four weeks, and may be interrupted in the case of project-related or deadlines. Further, night work of up to nine Sundays a year for up to five hours each is permissible without a governmental permit. The employer's obligation to implement a time recording system remains unchanged. Employers must keep in mind that the agreement can be terminated at any time by either the employer or the employee with three months' notice to the end of a month.
Opportunities and risks
The Federal Council has recognized these service providers' need for more flexible working hours and rest periods. With this, the Federal Council has created a legal framework that benefits both employers and employees. On the one hand, unpredictable workloads and an increased capacity at short notice no longer necessarily result in labor law violations. Employees, on the other hand, benefit from flextime and the possibility of shifting some of their working hours to Sundays. However, implementing, maintaining and supervising a functioning time recording system is inevitable. Although this change is limited to specific service providers, the trend of liberalizing working hours will hopefully continue in the future. Until then, employers must be cautious to ensure compliance with the applicable labor law regulations to avoid sanctions in the case of a labor law audit.
