The ECJ speaks out
With the so-called “Time clock judgment” of May 14, 2019 – C-55/18 – The ECJ stated that employers are obliged to record the working hours of their employees. According to the ECJ judges, this obligation arises from the fundamental right of every employee to a limit to maximum working hours and to daily and weekly rest periods, which is guaranteed in the EU Charter of Fundamental Rights and the content of which is specified in the Working Time Directive.
Without a system for recording daily working hours, neither the number of hours worked and their distribution over time nor the number of overtime hours can be determined objectively and reliably. In order to determine whether the maximum weekly working hours and rest periods have been adhered to, an objective and reliable determination of daily and weekly working hours is essential. Otherwise, an employee cannot or only with difficulty enforce their protective rights.
In order to guarantee workers’ rights, Member States must therefore require employers to put in place an objective, reliable and accessible system to ensure that the
The daily working time worked by each employee can be measured. The ECJ did not define the exact requirements for an “objective, reliable and accessible system”, but left the specific modalities for implementing such a system and the consideration of special features, such as the characteristics of an industry or the size of the company, to the member states.
The BAG is following suit
With a view to the ECJ’s decision, the Federal Labor Court (BAG) has agreed Resolution of September 13, 2022 – 1 ABR 22/21 – found that under German law, employers are already legally obliged to record the entire working time of their employees. However, this obligation does not arise from the Working Hours Act, but rather when interpreted in accordance with EU law Section 3 Paragraph 2 No. 1 Occupational Safety and Health Act (ArbSchG). According to this framework regulation, the employer must ensure a “suitable organization” and provide the “necessary resources” for planning and implementing the measures in accordance with Section 3 of the ArbSchG, taking into account the type of activities and the number of employees. From this organizational obligation, the BAG also concludes, if interpreted in accordance with EU law, that employers are obliged to introduce a system for recording the daily working hours worked by their employees, which includes the start and end and thus the duration of working hours including overtime.
BMAS draft bill
In order to create legal certainty on the question of “how” the recording obligation, the Federal Ministry of Labor and Social Affairs (BMAS) issued one in April 2023 Draft bill to amend the Working Hours Act presented.
This sees an implementation of the previously presented case law requirements, in particular by supplementing Section 16 ArbZG. The draft goes beyond previous case law in that it includes an obligation to, among other things, electronic time recording.
To date, this draft has not made it into the legislative process. On one Small request The federal government replied in June 2024 that it could not yet set a timetable for when the law would come. The timing therefore remains unclear for the time being.
The following currently applies
Section 3 ArbSchG does not provide any specifications regarding the requirements for the time recording system. The recording can therefore be done manually with pen and paper, with a time card, electronically in an Excel, using a computer program and also via an app. Entrepreneurs currently have a lot of leeway when it comes to implementation, which must be measured by the purpose of the recording obligation as well as the European legal requirements for objectivity, reliability and accessibility. Nothing more, but nothing less either.
A violation of Section 3 ArbSchG is not subject to a fine under current law.
The BMAS has on its website FAQs about working time recording published.
Stand: 30. September 2024
