The New Regulations on the Recording of Working Time

According to the Occupational Health and Safety Act, the employer is obliged to introduce a system to record the hours worked by employees.

This was stated by the Federal Labour Court in its decision of September 13th 2022 (Ref. 1 ABR 22/21). With this decision, the Federal Labour Court has bindingly ruled that the European Court of Justice (ECJ) ruling of May 14th 2019 (ECJ Case 55/18 CCOO) must also be taken into account by German employers.

This article explains what this new ruling entails and what you as an employer in Germany must consider when recording the working hours of your employees.

The Most Important Points in Brief

It follows from the decision of the Federal Labour Court that with the introduction of a system for recording working time, the actual working time of employees must be recorded. The obligation to record time is part of occupational health and safety. However, the form of recording working time has not yet been specified by the legislator. Furthermore, despite this new regulation, mobile working as well as trust-based working time remains possible.

What Was Decided by the BAG in Its Decision of September 13th 2022 (BAG - 1 ABR 22/21)?

The Federal Labour Court made a binding decision that the entire working time of employees must be recorded. This resulted from the interpretation of section 3 (2) no. 1 of the Labour Protection Act in conformity with EU law.

§ Section 3 of the Occupational Health and Safety Act regulates the employer's basic obligations on the subject of occupational health and safety. According to this, the employer must take the necessary occupational safety and health measures, taking into account the circumstances that influence the safety and health of employees at work. He must check the effectiveness of the measures and, if necessary, adapt them to changing circumstances. In doing so, he shall strive to improve the safety and health of the employees. In order to plan and implement these measures, the employer shall then ensure appropriate organisation and provide the necessary resources, taking into account the nature of the activities and the number of workers.

In its ruling, the BAG decided that the legal obligation to introduce a working time recording system can be derived directly from Article 3, Paragraph 2, No. 1 ArbSchG. As justification, the BAG states that the employer is obliged to ensure the health protection of employees, which follows from the wording of the article. According to this, the BAG recognises that the recording of working time is to be regarded as the "organisation of a necessary measure of occupational health and safety" and therefore falls within the scope of the employer's duty.

The employer's duty is not limited to making the system available. He is obliged to ensure the actual use of this system.

What Did the ECJ Rule in Its Judgment of May 14th 2019 (ECJ Case 55/18 CCOO)?

In its decision, the Federal Labour Court refers to the ruling of the European Court of Justice of May 14th 2019, in which it was decided that the European member states are obliged to establish an objective, reliable and accessible system that is suitable for measuring daily working time.

However, according to the previous opinion, this did not result from the German labour laws, so that there was no current obligation for employers to act. With the ruling (BAG 1 ABR 22/21), the BAG now bindingly states that there is an obligation to record working time. Section 3 (2) no. 1 ArbSchG results in a direct legal obligation to introduce a working time recording system.

What Exactly Does the Employer Have to Record? What Does the Employer Have to Pay Attention To?

Concrete contents on the documentation of working time have not yet been agreed upon. However, it must be ensured that the maximum working time is not exceeded and that daily rest periods are effectively observed.

Until now, Section 16 (2) of the Working Hours Act only included the obligation for employers to record working hours exceeding eight hours per working day as well as all working hours on Sundays and public holidays. In addition, a time record had to be kept for mini-jobbers (section 17 of the Minimum Wage Act). The time sheets had to be kept for at least two years and presented for inspection by the supervisory authority upon request.

According to the new ruling on the recording of working time, it is now no longer sufficient, according to the BAG, for the employer to record working time in accordance with the currently applicable requirements. As an employer, you are now obliged to record the entire working time. This obligation includes recording the beginning, end and specific duration of daily working time. According to the BAG, this is the only way to effectively ensure compliance with peak working hours and daily and weekly rest periods.

Since the obligation is derived directly from the Occupational Health and Safety Act, it is already mandatory and must be implemented directly by employers. This means that the new requirements are already applicable law for German employers.

Trust-Based Working Time/Mobile Working

Trust-based working time and mobile working remain possible under the new provisions.

Trusted working time is a flexible working model in which the employee can decide independently on the beginning and end of the contractually agreed working time. The recording of maximum working hours and rest periods do not stand in the way of such a working model.

Nevertheless, in practice this means for the "trust-based working time" model that there will be more control and a weaker trust component in the future. As an employer, you can agree with your employees that they will not be strictly controlled, but employees with trust-based working time must also record their actual working time. As an employer, you still have to check whether the legal requirements for working time (maximum working time, rest periods) are observed.

The same applies to mobile working and home office: the new requirements apply regardless of the place of work and must be observed regarding maximum working hours and rest periods. However, the Federal Ministry of Labour and Social Affairs is planning a new legal framework for mobile work, which is expected to be presented next year.

Recording of Working Time: Employee and Employer Obligations

What do the changes actually mean for you, your company and your employees?

First of all, as an employer you are responsible for:

1. Complying with the applicable laws: (Re)organise your company so that the working hours of your employees are fully documented (the obligation arises directly from Section 3, Paragraph 2, No. 1 of the Occupational Health and Safety Act).
2. When recording working time, you must actually record the location, start, duration and end of working time.
3. The mere provision of a time recording system is not sufficient. You must record the exact time of the beginning and end of work: a blanket note that an employee worked eight hours and took a 30-minute break is not sufficient.
4. You do not have to do the time recording alone: you may delegate the time recording to your employees individually. However, you must provide guidelines, such as preparing a document in which your employees can enter their working hours.
5. As an employer, you must check whether the working hours are documented. You must not rely on the fact that all working hours have been entered correctly. The main point is that it is possible to check afterwards whether the maximum working hours have been observed.
6. You must also set up time recording for mini-jobbers.
7. According to the BAG, the way in which you check the time recording is up to you, as long as it complies with the previous statements.
8. Note: The Federal Ministry of Labour and Social Affairs has published a draft law that includes some proposals to implement the BAG's decision. In particular, it contains the potential obligation to implement time recording electronically. In order to anticipate the change in your company, it is advisable to find out to what extent your company could implement electronic time recording.

Prospect: Concrete Legal Framework for Recording Working Time?

The reasons for the decision of the Federal Labour Court were already published on December 3d 2022. However, the concrete consequences for the legislator still have to be examined. A first draft of the law by the Federal Ministry of Labour and Social Affairs states that:

• The beginning, end and duration of working time must be recorded electronically. This also applies to official telephone calls or e-mails outside working hours.

An electronic record of working time must meet several requirements:

1. It must ensure the safety and health of workers.
2. It must comply with the legal regulations on data protection.
3. It must allow for the electronic recording of working hours on a daily basis.

• Employers, supervisors or employees document the time.
• Employers must inform employees of the recording upon request.
• Exceptions apply, inter alia, to small businesses of up to ten employees who can record time manually.

The obligation to record working time already exists according to case law. The draft law, however, has not yet entered into force. The draft provides for soft transition periods to switch to electronic time recording:

• 1 year from 250 employees
• 2 years for less than 250 employees
• 5 years for less than 50 employees
• Paper time recording remains sufficient for 10 employees and less.