Night shift in customer support? Sunday deployment before the launch of a new software? What often is necessary in the reality of SMEs presents a challenge for companies in terms of labor law. This is because the Employment Act (EmpA) and its four ordinances regulate night and Sunday work in detail – and strictly. As public law, these regulations are generally mandatory. Here you can find out what you need to bear in mind to avoid sanctions.
What’s behind it?
The law wants to protect the physical and mental health of employees – and at the same time takes into account the socially recognized need for rest in the evening and on Sundays.
The times – at a glance
Night work
Applies between 11 p.m. and 6 a.m. It is generally subject to permission.
Sunday work
Applies to all work between 11 p.m. on Saturday and 11 p.m. on Sunday. This also generally requires a permit.
Permit requirement
Principle: Night and Sunday work, i.e. any deployment of an employee at the above-mentioned times, is generally subject to permission. The permit must be obtained from SECO or the cantonal authority, depending on the situation, and is only granted if the work at night or on Sundays is absolutely necessary and the protective provisions of the Employment Act are complied with.
Are there exceptions? Yes. Ordinance 2 to the Employment Act (EmpO 2) lists certain groups of companies where night or Sunday work is possible without a permit. But beware: the decisive factor is not just the sector, but whether there is an objective necessity in the specific case. Typical example: IT support services around the clock when a business interruption would have serious consequences. The SECO guidelines provide clarity on the specific requirements for an exemption from the permit requirement, as these are not always clear from the ordinance itself.
Duties regarding remuneration
Even if the permit has been granted – or is not required – the duty of legal diligence does not end there. The decisive factor is primarily how often and in what form night or Sunday work is performed. This distinction has a particular impact on wage supplement entitlements and other requirements under employment law.
Night work
- If a person works up to 24 nights per calendar year, this is considered temporary night work. A wage supplement of 25 % is due for this.
- From 25 or more nights, the assignment is considered regular or permanent. In this case, the wage supplement does not apply – instead, the employee is entiled to a 10% compensatory rest time.
Sunday work
- For occasional Sunday work (i.e. a maximum of 6 Sundays per calendar year), a wage supplement of 50% is prescribed by law.
- In the case of regular or permanent Sunday work (i.e. 7 or more Sundays per calendar year), this wage supplement does not apply under certain conditions: If Sunday work is explicitly agreed in the employment agreement, or if it is part of the advertised job and implicit consent can be assumed.
Further obligations – many pitfalls at a glance
In addition to the entitlement to a wage supplement, numerous accompanying requirements apply. These are regulated differently depending on the constellation – in particular depending on the group of companies – and require close examination in each individual case. The following points in particular are often relevant:
- Rest and recovery periods: Minimum intervals between work assignments must be observed. In the case of Sunday work, for example, employees are also entitled to at least 12 Sundays off per year (excluding statutory leave).
- Weekly rest period: A sufficient weekly rest period must be granted – even with rolling shift models. This is particularly complicated in the case of Sunday work.
- Overtime on Sundays: The law is particularly strict here – this is hardly ever permitted.
- On-call duty: Special regulations apply depending on the probability of call-out and the location (e.g. at home or on site).
- Recording working hours: Complete documentation is mandatory.
- Duty to cooperate and health protection: Employees may need to be involved or medically cleared.
- Collective employment agreement (CEA): CEA’s can provide for even more regulations for companies. In particular, deviating regulations or additional obligations are possible. Therefore, always check in advance whether CEA’s apply in your sector
Conclusion: clear arrangements in advance – less stress later on
The Employment Act places high demands on night and Sunday work. A clearly regulated employment agreement, tailored to your business needs, is essential. Clarifying in advance whether a permit is required – and what applies afterwards – saves time, money and trouble.
