Background

Already in May 2019, the European Court of Justice had required companies to fully record the daily working time of their employees. The European requirements were to be understood as requiring all companies to record the start, end and duration of daily working time in an objective, reliable and accessible system. It was disputed whether this obligation already applied directly to employers or required implementation in the Working Time Act (ArbZG).

Main Content

The subject of the draft bill is an amendment to the Working Time Act and corresponding provisions of the Youth Employment Protection Act. The following changes have been announced:

• Scope of the recording obligation: As required by the European Court of Justice and the Federal Labor Court, the draft stipulates that the beginning, end and duration of daily working time must be recorded. Until now, the Working Time Act has not provided for such full time recording. Beginning end of break times do not have to be recorded. However, a conclusion can be drawn, at least with regard to the length of breaks, from the comparison of the beginning and the end of working time on the one hand and the recorded duration of working time on the other.
• Form of recording: While case law has left open the form in which the records are to be made, the draft law generally provides for electronic recording. A permanent exception to this is only to be provided for small companies with up to 10 employees and for foreign companies without a permanent establishment in Germany that post up to 10 employees to Germany. In addition, there is to be a general transition period of one year for electronic recording, which is to be increased to two years for companies with fewer than 250 employees and to five years for companies with fewer than 50 employees. However, this does not generally exempt companies from the extended recording obligations in general. These are to apply immediately upon entry into force of the law. The transition period only applies to recording in electronic form. In addition, there is to be an option to deviate from the electronic form by collective agreement or on the basis of a collective agreement in a works council agreement.
• Time of recording: In principle, the start, end and duration of the daily working time must be recorded on the day the work is performed. This may only be deviated from by collective agreement or on the basis of a collective agreement in a works council agreement. In this case, it should also be possible to permit later recordings. However, these must then be made no later than the end of the seventh calendar day following the day on which the work was performed.
• Responsibility: In principle, the employer is responsible for time recording. However, the employer may delegate this responsibility to employees or third parties (e.g. executive employees), but this does not relieve the employer of its responsibility for time recording.
• Trust based working time: The draft provides for a special regulation for cases of trust based working time (Vertrauensarbeitszeit). If the records are kept by the employees and the employer waives the control of compliance with the contractually agreed working time, the employer must nevertheless provide suitable measures to ensure that violations of the Working Time Act are avoided. The employer must therefore take precautions to ensure that it becomes aware of violations of the Working Time Act despite waiving the control of compliance with the contractually agreed working time. The draft gives as an example corresponding reports of violations through an electronic time recording system.
• Keeping records available: The records must be prepared in German and kept available in Germany.
• Access for employees: Upon request, employees shall be informed of the recorded working hours. This can be done by means of a printout or an electronic copy.
• Exceptions through collective agreements: A collective bargaining agreement or a work council agreement may waive time recording in electronic form and extend the period for recording daily working hours (see above). In addition, it is envisaged that appropriate collective agreements can exempt employees from the obligation to record their working hours where, due to the special characteristics of the activity performed, the total working time is not measured or cannot be determined in advance or can be determined by the employees themselves. The criteria are kept quite vague. The legislator mentions, that this regulation can be applied to managers, prominent experts and scientists who are not obliged to be present at the workplace at fixed times, but can decide for themselves on the scope and allocation of working time.

Conclusion

Companies should take a close look at the planned changes to the recording of working hours, as the law is due to come into force at the start of the quarter after it is promulgated. This could therefore happen as early as 1^st July 2023. Transition periods are only planned for manual time recording. The start, end and duration of daily working time must be recorded immediately when the law comes into force. Anyone who has already organized a working time recording system will have to check whether this is within the scope of the planned legal requirements. Thus, there is a need for all companies to take action in short term.

Authored by Dr Lars Mohnke.