Employers are now obliged to record time!

Legal background

In the so-cal­led time clock ru­ling of 14 May 2019 (Ref. C-55/18 CCOO) on the in­ter­pre­ta­tion of the Working Time Di­rec­tive, the ECJ cla­ri­fied that EU Mem­ber Sta­tes must ob­lige em­ploy­ers to in­tro­duce time re­cor­ding sys­tems. Em­ploy­ers should the­re­fore be ob­li­ged to set up an ob­jec­tive, re­lia­ble and ac­ces­si­ble sys­tem to mea­sure the daily working time of each em­ployee. The ru­ling has not yet been im­ple­men­ted in Ger­many.

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Ac­cor­ding to the de­ci­sion of the Fe­deral La­bor Court (BAG) of 13 Sep­tem­ber 2022 (Ref. 1 ABR 22/21), the ru­ling of the ECJ must al­re­ady be ob­ser­ved by em­ploy­ers in Ger­many to­day, re­gard­less of any out­stan­ding le­gis­la­tive plans.

Ac­cor­ding to the BAG, the le­gal ba­sis for this is the cur­rent Oc­cupa­tio­nal Health and Safety Act (Sec­tion 3 (2) No. 1 Arb­SchG). Ac­cor­ding to this, the em­ployer must en­sure a sui­ta­ble or­ga­niza­tion and pro­vide sui­ta­ble me­ans to take the ne­cessary oc­cupa­tio­nal health and safety mea­su­res. From this, the BAG con­clu­des that the em­ployer is ob­li­ged to in­tro­duce a sys­tem with which the working hours worked by em­ployees can be re­cor­ded. This sys­tem is in­ten­ded to en­sure that the re­gu­la­ti­ons on ma­xi­mum working hours and rest pe­riods - which are in­ten­ded to pro­tect the health of em­ployees - are com­plied with.

This me­ans that em­ploy­ers are ob­li­ged to re­cord em­ployees' working hours with im­me­diate ef­fect. Re­cor­ding in ac­cor­dance with the pro­vi­si­ons of the Working Hours Act (Sec­tion 16 (2) ArbZG), which only ob­li­ges em­ploy­ers to re­cord working hours over eight hours on week­days and all working hours on Sun­days and pu­blic ho­li­days, should not be suf­fi­ci­ent. In­stead, the ent­ire working time, in­clu­ding the be­gin­ning and end, must be re­cor­ded.

Effects on flexible working time models

As the re­cor­ding of working hours only en­su­res com­pli­ance with the Working Hours Act, but does not mo­ni­tor com­pli­ance with pos­si­ble con­trac­tually owed working hours, the ru­ling of the Fe­deral La­bor Court has no im­pact on fle­xi­ble working time mo­dels such as trust-ba­sed working hours.

There are also no chan­ges with re­gard to the re­cor­ding of working hours for mo­bile work, as the pro­vi­si­ons of the Working Hours Act on ma­xi­mum daily working hours and rest pe­riods must al­re­ady be com­plied with re­gard­less of the place of work and the­re­fore also for mo­bile work.

Structure of the obligation to keep records

To date, there are no spe­ci­fic re­qui­re­ments re­gar­ding the struc­ture of working time do­cu­men­ta­tion. It is pos­si­ble that the le­gis­la­tor will make con­crete state­ments on this. All that is cer­tain so far is that the em­ployer must re­cord the start, end and du­ra­tion of each em­ployee's daily working hours, in­clu­ding over­time, in or­der to ef­fec­tively en­sure com­pli­ance with the ma­xi­mum working hours and the daily and weekly rest pe­riods.

The BAG al­lows a great deal of lee­way here and re­fers to the dif­fe­rent areas of ac­tivity of the em­ployees and the pe­cu­lia­ri­ties of the com­pany, in par­ti­cu­lar its size.

Note: In prin­ci­ple, re­cords can be kept both elec­tro­ni­cally and by hand. Howe­ver, it must al­ways be en­su­red that the re­cor­ding is ob­jec­tive, re­lia­ble and ac­ces­si­ble.

Pro­vi­ded it is en­su­red that the oc­cupa­tio­nal health and safety re­qui­re­ments are com­plied with, the em­ployer can de­le­gate time re­cor­ding to the em­ployees, as was pre­viously the case un­der the Working Hours Act, but must mo­ni­tor and check both the time re­cor­ding and com­pli­ance with the re­qui­re­ments of the Working Hours Act.

Practical recommendations

In the event of a bre­ach of the ob­li­ga­tion to keep re­cords, the com­pe­tent health and safety aut­ho­ri­ties can de­mand im­pro­ve­ments from em­ploy­ers and, if ne­cessary, im­pose fi­nes, the amount of which de­pends on the se­ve­rity of the bre­ach. Em­ploy­ers should the­re­fore not wait un­til a le­gis­la­tive amend­ment to the Working Hours Act lays down spe­ci­fic re­qui­re­ments for re­cor­ding working hours.

In­stead, com­pa­nies that have not yet done so should in­tro­duce a time re­cor­ding sys­tem as soon as pos­si­ble. In par­ti­cu­lar, it must be en­su­red that this is tam­per-proof and that both em­ployees and su­per­vi­sors have no pos­si­bi­lity of ac­ces­sing the sys­tem and uni­la­te­rally chan­ging working ti­mes.

When selec­ting a sui­ta­ble time re­cor­ding sys­tem, it is ad­visa­ble to con­sider the spe­ci­fic cha­rac­te­ristics of the com­pany and to ex­amine the fol­lo­wing ques­ti­ons in par­ti­cu­lar:

Do the em­ployees all work on one site? Is there mo­bile working or field ser­vice? Do all em­ployees have ac­cess to elec­tro­nic sys­tems or are there em­ployees wi­thout ac­cess to com­pu­ters? This may al­re­ady re­sult in cer­tain re­qui­re­ments for the time re­cor­ding sys­tem. If ne­cessary, this check can also lead to more than one sys­tem ha­ving to be in­tro­du­ced in the com­pany.

Note: Due to its right of co-de­ter­mi­na­tion (Sec­tion 87 (1) No. 6 Be­trVG), it is also ad­visa­ble to in­volve the works coun­cil, if pre­sent, in the in­tro­duc­tion of the time re­cor­ding sys­tem at an early stage.

Contact person

If you have any ques­ti­ons on the sub­ject of time re­cor­ding, please do not he­si­tate to con­tact your usual RSM Eb­ner Stolz con­tact per­sons. You can also get in touch with our ex­perts in em­ploy­ment law.