Global Compliance Desk – Germany

German Federal Labor Court Elaborates the Rules for Recording Working Time

This is in furtherance to the previous blog regarding the German Federal Court’s decision on Recording Working Time (BAG, 13.09.2022 – 1 ABR 22/21), dated September 23, 2022.

 The German Federal Labor Court has recently published a Written Opinion clarifying its reasons for the employers’ legal obligation to record working time.

The ECJ’s ruling on Recording Working Time primarily focused on the fact that employers must set up and maintain an appropriate system for recording working time, the German Federal Labor Court clarifies that a system for recording working time must not only be set up but also properly applied. In addition, the scope of the obligation is also clarified in the said opinion.   

The following rules apply to the recording of working time:

• Employers must set up a system for recording working time which, measured against the specific circumstances, is suitable for ensuring the protection of employees.
• The time recording system must comprehensively record the beginning and end of working hours, break times, and overtime. 
• Employers that also offer their employees leisure facilities must ensure that the times when such facilities are used are clearly differentiated from working hours and that employees then “clock out” accordingly. This also applies to after-work get-togethers at work, as this is the only way to ensure that not only maximum working hours are observed, but also rest periods after work. 
• No specific form of time recording is required. Working time recording can be done electronically as well as manually. But the data that is recorded must be protected and maintained. Employees may have to install such apps on their private phones, since not all employees have work phones, and recording on the computer is not feasible in every case. In addition, solutions are still needed for those employees who tend not to work in an office context and thus cannot easily record times digitally at all.
• Employers can delegate the duty to record working time to employees.
• Employers must ensure that the system is actually and correctly applied. 
• The exceptions to the Working Hours Act are applicable: Senior executives do not have to record working time.
• In companies with a works council, the design of working time recording (especially if it is to be done technically) remains the subject of cooperation between the management and the employees. The works council has no right of co-determination on the question of whether the working time is recorded.

In case of non-compliance, a first-time offender will not be subject to fines. In case of repeated non-compliance and specific orders by the authority, the employer may be subject to fines of up to EUR 30,000.

Conclusion

The German Federal Labor Court has also made it clear that the German legislature could in the future issue further specifications regarding the way in which working time is recorded. Until then, companies that do not yet have a working time recording system must introduce one now at the latest, in line with the points mentioned above. There is no transition period. Companies must comply with this obligation with immediate effect, as it follows existing law under Section 3(2) of the German Occupational Health and Safety Act.