What applies to the topic of working time recording? – A check – Career & Education

How mandatory are the requirements for recording working hours?

First of all, the German Working Hours Act has regulated for decades that working hours of more than eight hours a day, i.e. overtime, must be recorded, says Peter Meyer, a specialist lawyer for labor law and member of the German Bar Association. In many companies, particularly production companies, working hours have been recorded accordingly for many years – just think of the time clock.

In addition, in 2022 the Federal Labor Court ruled in a landmark ruling that the start, end and duration of daily working hours must be recorded (case number: 1 ABR 22/21). This was preceded by the so-called time clock ruling of the European Court of Justice (ECJ). According to this, EU countries are obliged to introduce objective, reliable and accessible working time recording. It should help to curb excessive working hours and comply with rest periods.

Various reports commissioned by the federal government have also reached this conclusion, explains Prof. Michael Fuhlrott, a specialist lawyer for labor law and a member of the Association of German Labor Lawyers (VDAA). “It may be that working hours are not recorded in all companies, but that does not change the basic obligation.” However, there is currently no specific law in Germany that regulates the details of how to implement working time recording.

How is the implementation of working time recording monitored?

One problem with working time recording in Germany: In theory, it is possible to monitor it, but in practice little happens. The Working Hours Act only provides for fines for violations of the obligation to record working hours in excess of eight hours per working day. However, if an occupational health and safety authority orders the introduction of a working time recording system and the company does not comply, fines could possibly be imposed under this law. “As far as I know, that is not currently happening,” says specialist lawyer Peter Meyer.

If working hours are not recorded, the maximum result is a warning and a corresponding requirement for the future, says Michael Fuhlrott. This will only change when the legislature introduces regulations for fines for failure to record working hours. In most cases, companies are only inspected if there have been complaints beforehand, for example from former employees, says the specialist lawyer. Overall, however, the level of inspection is low.

Does time recording have to be done electronically?

This is also currently being discussed. In an initial draft of the law, such an obligation to record data electronically was still envisaged, as labor law expert Fuhlrott explains. However, this was not pursued further after massive criticism. In most companies, a system has long been established, whether using a spreadsheet, app or the classic time clock.

Do employees have to record their working hours even when working from home?

No matter where and when you work, your working hours must be recorded. Incidentally, this rule only applies to employees, not freelancers. There is also an exception for senior managers. If interns are employed, they must also record their hours.

Can employees do something to ensure that their employer complies with their obligation to record working hours?

Actually, the works council should not have the right to initiate the introduction of a system for recording working hours, according to the decision of the Federal Labor Court in 2022. Due to the obligation under the Occupational Safety and Health Act, there is no scope for co-determination, according to the reasoning.

According to Peter Meyer, however, the Federal Labor Court itself pointed out in its decision that the situation is different with regard to the “how” of time recording desired by the employer. “In this respect, a works council – if one exists – could certainly take the initiative.”

Time recording and trust-based working hours – aren’t they mutually exclusive?

This is indeed a problem. At least if trust-based working hours are understood to mean working without recording the time. Trust-based working hours in the sense of self-determined work without permission and according to a free schedule are still possible, but the working hours must be recorded.

For example, someone who works in creative or knowledge-based jobs in the morning, devotes himself to other things in the afternoon and only sits at his desk again late in the evening would ignore the prescribed rest period of eleven hours. Some people might feel patronized here.

For this reason, there is also discussion about abolishing the maximum daily working hours that have been provided for so far. This would be possible under European law, which only sets out the maximum weekly working hours. The Union factions also made a move in this direction, but it was rejected.

In addition, certain professional groups could be allowed to freely decide when they work. According to Meyer, the unions, on the other hand, are calling for mandatory time recording for all professional groups. Their argument is that trust-based working hours are still possible, but they must be recorded.

So does time recording only have advantages for employees?

A clear case of: It depends. There can certainly be disadvantages for certain groups of employees, says Peter Meyer. Especially for those who have previously organized their time freely or enjoyed trust-based working hours. On the other hand, violations of rest periods or too many overtime hours can be more easily uncovered thanks to time recording. “The obligation to record time has not tightened the existing regulations,” says Fuhlrott. “It is only what has been practiced for the past decades that is now coming to light.”

BMAS: FAQ on working time recording