At the end of 2022, the German Federal Labor Court (BAG) published a decision stating that employers are obliged to introduce a system for recording the total working hours of their employees (BAG, 1 ABR 22/21). Up to now, the Working Time Act (ArbZG) has not contained an explicit obligation to record the working hours of all employees, except for overtime. The BAG thus confirms the decision of the European Court of Justice (ECJ) from 2019, according to which all EU member states are obliged to require all employers to introduce an “objective, reliable and accessible system” documenting the work performance of their employees (ECJ, C-55/18). In its decision, the BAG bases the obligation to introduce a time recording system by the employer on the provision in Sec. 3 (2) No. 1 Occupational Health and Safety Act (ArbSchG), which states that the employer must enable “suitable organization” and provide the necessary resources for this.
Employers and the German legislator are expected to act in response to the BAG’s decision on the recording of working hours. The German Federal Ministry of Labor and Social Affairs (BMAS) has announced that it will present a proposal for including the obligation to record working hours in the Working Time Act in the first quarter of 2023. However, employers should start dealing with the new requirements now and not just wait for the legislator to pass a new law as the new case law on the obligation to record working hours is binding with immediate effect. Employers should therefore pay particular attention to the following:
- Employers should start to either work on implementing a working time recording system that records start, end, and total duration of daily working time as well as breaks or they should check their existing time recording system for compliance with the new requirements.
- Case law does not stipulate any requirements with regard to the type and form of recording of working hours. This means that employers are largely free to choose the type and form of the time recording system itself (e.g. whether electronic or not).
- Employers can delegate the recording of working hours as such to their employees. However, since the employer is responsible for setting up and operating a working time recording system, they must also encourage employees to use the system in practice. For this purpose, employers should sufficiently instruct their employees and inform them which times are to be recorded as working hours. The correct use of the time recording system should also be monitored regularly.
- Companies with a works council must involve them in the decisions around the arrangement (the “how”) of a working time recording system as the works council has participation rights in this respect.
- Employee data protection must also be taken into account when establishing a time recording system, as time records are considered personal data and must be treated in accordance with the essential data protection principles (e.g. data minimization, storage period, international data transfer).
With regard to flexible working models, such as trust-based working or working from home, no significant consequences are to be expected in the future: trust-based working time means that employees are responsible for planning their own working hours and must ensure that they comply with the amount of time agreed with the employer. Even before the new case law on time recording, the general conditions of the Working Time Act already applied here. The obligation to record working time means that in the future, the working time itself must be documented, but flexible working time arrangements remain generally feasible. This means that if employees have access to a working time recording system from home to record their working hours, the requirements of the new case law are still met.
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