The Kwickr Blog

Work Flexibility – Rules and Reality

Real story: a friend of ours was working as the production coordinator for a marketing agency (about forty employees). He was approached by a contact with an opportunity to change jobs and work for a different, much larger company, where he would have similar responsibilities. He looked into it. The offer was, on paper, extremely attractive – a large increase in salary and benefits, a much larger team of colleagues dealing with production and therefore less pressure on him, and a luxurious working environment. He turned it down. He turned down the money, the luxury surroundings, the lower-pressure work.

Why? One word: flexibility. The new opportunity had one downside, and it turned out to be the deciding factor. He would not have the flexibility to work when it best fitted his own needs and schedule. He would have to arrive at the office at a certain time, take his breaks at a certain time, and leave at a certain time. He decided to keep the job he had, which offered him the flexibility to organise his own schedule. Who doesn’t want to be in control of their time.

The Times Aren’t Changing – They Changed Years Ago

The days when only the leisure class could expect to have control over their time, and those with jobs accepted having their time managed by others, are long over. Fewer and fewer people are happy to accept the “9-to-5” routine – a trend that in fact started decades ago but keep gathering pace.

And the best employers want to keep up with the times and adapt to this.

Yet EU and Belgian working time rules remain constraining for employers. The fact is that the legislative environment is simply not keeping up with the rapidly evolving possibilities of the digital era in terms of working flexibility, nor with the corresponding evolution in employee expectations and employer desires in terms of meeting those expectations.

Today, many employers want to offer maximum flexibility to employees. Yet the conditions they want to be able to offer are often simply not permitted by applicable working time legislation.

Until recently for example it was pretty much impossible for an employer in Brussels to officially even offer the conditions that reflected the actual reality in the office.

In consultancies, law firms, and other professional environments around town, well-paid employees often work late into the evening. Many bring their work home with them. Of course, many of them also arrive mid-morning to the office, avoiding the morning rush hour. In short, the 9-to-5 working day had died years ago. Working well over forty hours per week has been the norm for many people for a long time.

When the Law No Longer Reflects Reality

You could of course put in place strict internal policies and practices to try to ensure that your employees do not work more than they should, and that the respect all details of the law. But you would face very serious problems of competitivity vis-à-vis all the other companies in your market who are following standard practice, and you would honestly have a hard time competing for business.

Perhaps even more importantly, you would have a hard time competing for the best employees. Who, today, wants to be told to punch a time clock and make sure they stop working when they’ve reached the time limit? It’s not only humiliating but it prevents motivated and ambitious employees from achieving the goals they are aiming for as fast as they want to achieve them.

So what should an employer do who would like to remain compliant but who has to also remain competitive in the business and employment marketplace? We spoke informally to Julie De Maere of the law firm Claeys & Engels, Belgium’s leading firm on employment law, to learn more about what the law says versus what employers do, and how the two can best be reconciled.

It turns out there are a few approaches to help maintain the best possible level of compliance. For example, many people, while technically employees, may qualify as being within the categories that are exempt from working time rules altogether. These include:

  • People with managerial roles or important responsibilities, whose job functions are listed in relevant legislation, may be considered exempt. Certainly any officer of a company – someone who can sign on behalf of the company or engage the company vis-à-vis  third persons – can be considered exempt.
  • People working from home (take note!)
  • Sales representatives who require flexibility for travel to customers.

That’s the good news.

The 2017 Reform – Trying to Match Law to Reality

However, many people still ARE covered by working-time rules that don’t match reality. Fortunately, the Belgian reform of 2017 has provided some other solutions as well. They may not be perfect, but they help. And to be fair, there WAS an effort made to adapt the law to the overwhelming reality on the ground.

So now, for example, an employer can offer “floating” working time to employees. This codifies what is already a reality for many: the employees can decide each day when to start working, and when to stop working, when to go to lunch and for how long, etc. The main constraints are that employees are not allowed to work more than 9 hours on a given day, and not more than 45 hours in a given week. (And of course overall averages need to be respected, too: in general, not more than 38 hours per week on average during the course of a year.) Overtime still needs to be paid if employees work more than that.

Wait – Overtime? What’s That?

You might have thought that, for professionals, the concept of “overtime” is long dead. In practice it is, but it lives on in the law. And the law in Belgium says that if the time limits mentioned above are exceeded, overtime must be paid. The reality is that nobody is counting – the employee isn’t counting and neither is the employer and everyone is happy. And while that isn’t strictly legal, you might think it’s fine as long as everyone’s happy – the authorities will never know, because nobody will tell them and they will never look.

Which is all well and good until an employer winds up in a dispute with an employee, and suddenly the employer discovers that the employee is not only claiming overtime pay but is also reporting the employer for having infringed working time law.

De Maere told us that many employers try to avoid compliance risk in this area by stating in the official work rules of the company that employees are not permitted to work overtime unless with specific and explicit consent from the employer, in advance.

But she was also careful to point out that this hasn’t always worked in practice, and there is jurisprudence on this question that finds against the employer.

From which we conclude that, in spite of recent reforms, we remain in a situation where the law doesn’t reflect reality and at the same time, the reality cannot be changed.

Is the answer to just stay home?

You may have noted that working time rules do not apply to employees who work at home. This looks like it has some potential to provide a real compliance solution for some employers. Of course it’s not possible for everyone. Some types of work really do require that people are together in the same space – which would be an office.

And most employers are familiar with the reasons for which they want to have their employees at the office at least much of the time – it’s not about supervision and control, it’s about cooperation, synergy, cross-pollination of ideas, networking, esprit de corps, motivation, and many other “soft” factors that are essential to success.

Still, as the world becomes increasingly conscious of the environmental costs of physical transport, and the business costs of people spending their time in public transport or cars, the attractions of home working continue to grow. At some point, the costs of keeping the team together at the office will outweigh the costs of not doing so, and the day might even come when “the office” is truly a thing of the past. And with it, the concept of “working time”.,

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