Warsaw
Michał Prokop

Attorney at law (Poland)
Senior Associate, Manager
Phone: +48 22 244 00 76
E-Mail

Calculating the working time of a worker who works on the employer’s premises is normally not a problem. But how to calculate the working time of a worker who works in the field? A sales representative is the typical example of a field worker. Sales representatives travel across the country to pitch the employer’s products or services to potential customers. As part of their job, sales representatives travel for business nearly all the time. Often, such workers start their business trip directly from home without stopping at the workplace. It is also actually quite common that they do not have any designated workplace at the employer’s office at all. With this in mind, at what point should a field worker be considered to be already “at work”? Could such a way of working be classified as a business travel? How to design the working hours of a field worker to avoid overtime?

Example:

A sales representative works from 9:00 a.m. to 5:00 p.m. as agreed with his employer. The employer did not designate an office or any other place where the sales representative would start and end his work day. In order to arrive at a meeting scheduled for 11.00 a.m. at a business partner's premises, the employee must leave home at 7.00 a.m. The meeting ends at 1:00 p.m. and the employee immediately departs to another meeting which ends at 5:00 p.m. He comes home at 9:00 p.m. The employee uses a company car.

As a rule, the time of a business travel itself is not tantamount to the working time during that business travel. The working time does not include the time taken to travel to the place of work and the time to return home, unless such time coincides with the employee's scheduled working time, or the time of the business travel is beyond "normal working hours", but the employee performs work during that time (e.g. when travelling by train, he works remotely on a laptop). This is what the situation looks like in the case of the so-called typical business travels, i.e. incidental trips to work outside the employee’s fixed place of work.

These rules, however, do not apply to fieldwork.  In the case of field workers, travelling is inherent in their work, so the employee's entire travel time should be counted towards the working time (non-typical business travel). The working time of a sales representative should therefore also include the time taken to get to and from customers. The travel time outside the scheduled working hours should be thus considered as overtime.
 
Furthermore, as indicated in case law, it is entirely irrelevant what means of transport the field worker uses to travel (whether the worker’s own vehicle, or a vehicle provided by the employer, or public transport) and what the worker is doing when travelling (whether he is driving, working if possible, or resting).

The task-based working time vs. overtime

Contrary to popular belief, task-based working time is not really a solution to this problem. The task-based working system is subject to regulatory requirements as much as that non-task-based. Furthermore, the application of the task-based working system means that the tasks should be assigned in a way ensuring that the employee can perform them –at all times in compliance with the duty of care– within 8 hours per day and on average within 40 hours per week. In the above-mentioned example, this would be impossible to ensure so the employee is entitled to remuneration for his work during overtime hours and the overtime pay.

The daily rest period

Another important issue is that the employer is required to ensure 11 hours of daily rest for the employee. So, next to the employer’s right to instruct the employee to do overtime, there is also the employee’s right to uninterrupted daily rest. The employer is required to ensure that the employee has at least 11 hours of uninterrupted rest per 24 hours. The rest period can be shortened only in emergency situations: during a rescue operation to save human life or health, to protect property or the environment, or to remove damage or failure, as well as in the case of employees managing the workplace on behalf of the employer. The failure to observe this requirement may trigger a fine for non-compliance with labour law for the employer. Furthermore, in the above-mentioned example, the first two hours of work still count as the previous working day (the employee’s working day starts at 9:00 a.m.), which may be problematic if the previous day was the employee’s day off.

In sum, the working time of a sales representative as a field worker should also include the time taken to get to and from customers. It is irrelevant what means of transport the sales representative uses to get to customers and what he is doing when travelling.

If you want to discuss the topic of the working time of field workers in greater detail, please contact our experts who are available in Rödl & Partner offices in Cracow, Gdansk, Gliwice, Poznan, Warsaw or Wroclaw.

Marlena Kwiatek

12.06.2019