Recording of working time: Draft legislation on German Working Time Act has been published

After a long period of waiting, the German Federal Ministry of Labour and Social Affairs (BMAS) presented the draft legislation on the Working Time Act on 18 April 2023. The German Federal Labour Court (BAG) had already ruled on such issue in its decision of 13 September 2023 (1 ABR 22/21). For its part, the BAG’s decision was based on the requirements set out by the European working time law and the “time clock ruling” of the European Court of Justice (ECJ) of 14 May 2019 (Ref.: C-55/18), which had already caused a stir and uncertainty at the time, particularly among employers.

Wrap-up: The decision of the BAG

In September 2022, the BAG ruled that employers are obliged to introduce a system for recording working time that records the beginning, end and duration of the daily working time of employees. The BAG derived the obligation to record the time from Sec. 3 of the Occupational Health and Safety Act. In this context, the Court held that there was scope of discretion with regard to the form of the time recording system, so that the recording did not necessarily have to be carried out electronically.

The ECJ ruling

The BAG's decision was preceded by the ECJ's ruling of 14 May 2019, which had already announced mandatory time recording as an occupational health and safety measure on the basis of the EU Working Time Directive.

The draft regulation: What is in store for employers?

The draft contains the following regulations:

1 Form of time recording

a The draft provides for the electronic recording of the beginning, end and duration of daily working time for all employees. According to the draft, electronic also includes the use of a conventional IT spreadsheet programme.

b Non-electronic time recording remains possible for small enterprises with fewer than ten employees and for employers without a permanent establishment in Germany.

c In addition, non-electronic time recording may be stipulated by collective bargaining agreements or, on the basis of a collective bargaining agreement, by works or service agreement.

d Employers must store the time sheets for at least two years, additionally, keep stored time sheets ready in case of an inspection by the supervisory authorities.

e Upon request, employers must inform employees of the recorded working time and provide them with a copy.

2 Responsibility for recording

a In principle, the employer is responsible for time recording.

b Employers may, in fact, delegate the duty to record time to employees or third parties. However, the employer remains responsible.

c In the event of inspections by the supervisory authorities, employers must provide evidence to be legally compliant with the time recording requirements. This means that employers are obliged to “encourage” their employees to record their working time and to check (individually) whether proper daily time recording actually takes place. In the event of non-compliance with the obligation, appropriate measures (e.g. orders, warnings, etc,) must be taken.

3 When to record

a Working time must be recorded on the day the work is performed.

b It may be agreed by collective bargaining agreements or, based on a collective bargaining agreement by works agreement, that the recording may be conducted on another day, however, at the latest by the end of the seventh day following the day on which the work was performed.

4 Transitional periods

a The draft law contains transitional periods for the introduction of an electronic system staggered according to the size of the company. The time periods have not yet been determined.

b It should be noted that according to the BAG-decision time recording must nevertheless already be carried out non-electronically.

5 Exemption of certain groups of employees

a In principle, the working time of all employees must be recorded.

b The draft contains the possibility to exempt certain groups of employees from the obligation to record time through collective bargaining agreements, in cases where the working time cannot be measured, determined in advance or is determined by the employees themselves due to special characteristics of the activity performed. The draft thus adopts the wording of Article 17 of the EU Working Time Directive (2003/88/EC). The explanatory notes of the draft mention executives, high-ranking experts or scientists as examples of groups that may be exempted.

6 Sanctions for violations

a A violation of the obligation to record work and to keep and maintain records may result in a fine of up to EUR 30,000.00. In the worst case, companies could face a confiscation of profits generated due to violations of the Working Time Act.

7 Flexibilization of working time?

a With sec. 16 para. 4 the draft attempts to address the tension between trust-based working time and the recording of working time by allowing employers - if the recording is done by employees themselves - to waive the control of contractually agreed working time ("trust-based working time") provided that it is ensured that employers become aware of violations of statutory provisions of working time. Thus, the recording of working time remains mandatory even in the case of trust-based working time. More detailed regulations are missing so far.

b The draft also lacks exceptions for certain sectors, regulations on the organization of working time in case of working remotely and on increasing daily or weekly working time.

To conclude

The regulations contained in the draft bring few (hoped-for) innovations with regard to the flexibilization of working time and instead focus on provisions on the time recording obligation. The BMAS is thus missing its opportunity to create innovative regulations that address the challenges of a digital, flexibly designed working environment.

The draft will now be discussed first in the Government and subsequently in the German parliament. Amendments taking the needs of companies more comprehensively into account are therefore possible. We currently assume that the law will be passed before the summer break (end of June 2023).

Until the law comes into force, what has been said continues to apply: The obligation to record working time already applies. Employers with more than ten employees are advised to consider the possibility of introducing an electronic time recording system. In addition, employers (of companies that have not recorded working time so far) should already think about ways to persuade employees to record their working time on a daily basis.

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