The new regulations on working time recording

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

This was confirmed by the Federal Labor Court in its decision of September 13, 2022 (file no. 1 ABR 22/21). With this decision, the Federal Labor Court made a binding ruling that the judgment of the European Court of Justice (ECJ) of May 14, 2019 (ECJ Case 55/18 CCOO) must also be taken into account by German employers.

In this article, you can find out what this new regulation entails and what you as an employer in Germany need to bear in mind when recording your employees’ working hours.

The most important facts in a nutshell

The decision of the Federal Labor Court shows that with the introduction of a system for recording working hours, the actual working hours of employees must be recorded. The obligation to record time is part of occupational health and safety. However, the form of working time recording has not yet been defined by the legislator. In addition, despite this new regulation, mobile working and trust-based working hours remain possible.

What was decided by the BAG in its decision of September 13, 2022 (BAG – 1 ABR 22/21)?

The Federal Labor Court has made a binding ruling that employees’ entire working hours must be recorded. This follows from the interpretation of Section 3 para. 2 No. 1 of the Occupational Health and Safety Act.

§ Section 3 of the Occupational Health and Safety Act regulates the employer’s basic obligations with regard to occupational health and safety. According to this, the employer must take the necessary occupational health and safety measures, taking into account the circumstances that affect the safety and health of employees at work. It must review the effectiveness of the measures and, if necessary, adapt them to changing circumstances. In doing so, it must strive to improve the safety and health protection of employees. In order to plan and implement these measures, the employer must then ensure suitable organisation and provide the necessary resources, taking into account the nature of the activities and the number of employees.

In its ruling, the BAG decided that the legal obligation to introduce a working time recording system is derived directly from Art. 3 Para. 2 No. 1 ArbSchG. The reason given by the BAG is that the employer is obliged to ensure the health protection of employees, which is clear from the wording of the article. Accordingly, the BAG recognises that the recording of working hours is to be regarded as the “organisation of a necessary occupational health and safety measure” and therefore falls within the employer’s scope of duties.

The employer’s obligation is not limited to providing the system. He is obliged to ensure the actual use of this system.

What did the ECJ decide in its ruling of May 14, 2019 (ECJ Case 55/18 CCOO)?

In its decision, the Federal Labor Court refers to the ruling of the European Court of Justice from May 14, 2019. It was decided that the European member states are obliged to set up 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 labor laws, so that there was no current obligation for employers to act. With the ruling (BAG 1 ABR 22/21), the BAG has now bindingly established that there is an obligation to record working hours. From § 3 para. 2 No. 1 ArbSchG results in a direct legal obligation to introduce a working time recording system.

What exactly does an AG have to record? What does the employer have to pay attention to?

Specific content for working time documentation has not yet been agreed. However, it must be ensured that the maximum working hours are not exceeded and that the daily rest periods are effectively observed.

Previously, § 16 para. 2 of the Working Hours Act only requires employers to record working hours in excess of eight hours on weekdays and all working hours on Sundays and public holidays. In addition, time recording had to be carried out for mini-jobbers (Section 17 of the Minimum Wage Act). The time sheets had to be kept for at least two years and presented to the supervisory authority for inspection upon request.

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

As 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 hours/mobile working

Trust-based working hours and mobile working remain possible under the new regulations.

Trust-based working hours are a flexible working model in which employees can decide for themselves when to start and end their contractually agreed working hours. The recording of maximum working hours and rest periods does not stand in the way of such a working model.

Nevertheless, for the “trust-based working time” model, this means in practice that there will be more control and a weaker trust component in future. Although you as an employer can agree with your employees that they will not be strictly monitored, employees with trust-based working hours must also record their actual working hours. As an employer, you must nevertheless check whether the statutory provisions on working hours (maximum working hours, rest periods) are being complied with.

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

Recording working time: Employee and employer obligations

But what do the changes mean in concrete terms for you, your company and your employees?

As an employer, you are initially responsible for ensuring that

The applicable laws are complied with: To (re)organize your company in such a way that the working hours of employees are fully documented (the obligation arises directly from Section 3 (2) No. 1 of the Occupational Health and Safety Act).
When recording working time, you must actually record the position, start, duration and end of the working time.
The mere provision of a time recording system is not sufficient. You must note the exact time when work started and ended: a general note that an employee has worked eight hours and taken a 30-minute break is not sufficient.
You don’t have to do the time recording alone: You can assign time recording to your employees individually. However, you must set guidelines, such as preparing a document in which your employees can enter their working hours.
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 focus here is on the possibility of subsequently checking whether the maximum working hours have been complied with.
You must also set up time recording for mini-jobbers.
According to the BAG, the way in which you check the time recording is up to you, as long as it meets the above requirements.
Attention: The Federal Ministry of Labor and Social Affairs has published a draft law that includes some proposals for implementing the BAG’s decision. In particular, the potential obligation to implement time recording electronically. In order to reorganise your company with foresight, it is advisable to find out to what extent your company could implement electronic working time recording.

Outlook: concrete legal framework for recording working time?

The reasons for the decision of the Federal Labor Court were published on December 3, 2022. However, the specific consequences for the legislator still need to be examined. An initial draft bill from the Federal Ministry of Labor and Social Affairs states the following:

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

An electronic working time recording system must meet several requirements:

It must guarantee the safety and health protection of employees.
It must comply with the legal regulations on data protection.
It must enable the electronic recording of working times on a daily basis.

Employers, supervisors or employees must document the time.
Employers must inform employees about the recording on request.
Exceptions apply, for example, to small businesses with up to ten employees who can record the time manually.

The obligation to record working hours already exists in accordance with case law. However, the draft law has not yet come into force. The draft provides for soft transitional periods for the changeover to electronic working time recording:

1 year from 250 employees
2 years for less than 250 employees
5 years for less than 50 employees
Time recording in paper form remains sufficient for 10 employees and less.