Working time recording

Working time recording / Arbeitszeiterfassung

March 25, 2024

When documenting working hours, there is a lot for employers and employees to consider. Here is an overview of the most important aspects.

Why recording working time is necessary

The purpose of recording working time is to protect employees. The aim is to prevent them from being exposed to excessive daily or weekly working hours. It also ensures that the legal regulations can be checked by the supervisory authorities.

Legal basis and forthcoming changes

In the labour law regulations, only Section 16 (2) of the German Working Hours Act (ArbZG) applies to the recording of working hours. According to this provision, employers are obliged to record working hours in excess of eight hours on working days and all working hours on Sundays and public holidays. The employer must keep the records for at least two years and submit them to the supervisory authority on request or send them for inspection.

A general obligation to record working hours did not therefore previously exist. This changed with the ruling of the Federal Labour Court (BAG) on 13 September 2022 (case no. 1 ABR 22/21). Employees' entire working hours must now be recorded. The court based its reasoning on an interpretation of Section 3 para. 2 no. 1 of the German Occupational Health and Safety Act (ArbSchG) in line with EU law. Specifically, Section 3 (2) No. 1 ArbSchG states that the employer must ensure suitable organisation and provide the necessary resources for the implementation of occupational health and safety measures. The obligation to record working hours applies with immediate effect. It is to be expected that the Act will be amended accordingly. The Federal Ministry of Labour and Social Affairs (BMAS) presented a legislative proposal in April 2023.

Procedures

Due to the lack of a legal basis, it is not yet clear how exactly working hours are to be recorded. Recording in accordance with the current requirements is no longer sufficient. However, the judgement of the BAG provides some guidance.

Recording does not necessarily have to be digital, but can also be in paper form. It is important that comprehensive and secure documentation takes place and that the rules on data protection are observed. The start and end of working hours, break times and overtime must be recorded. A shift schedule is not a sufficient basis for this.

It is possible to delegate the recording of working hours to employees if the employer provides an appropriate recording system. In this case, however, the accuracy of the information and the use of the system must be regularly checked by the employer. The obligation also applies to working from home and to trust-based working hours. The only exceptions to the obligation to record working hours are executive employees. These are in particular managers who are authorised to independently hire and fire employees. The requirements are therefore high. In view of the uncertain legal situation, it is advisable to keep detailed records.

Consequences of non-compliance

Due to the lack of a legal basis, there are no immediate consequences in the event of an offence. In order to impose a fine, the labour protection authority would first have to order the recording of working hours separately. According to the legislative proposal, violations of the obligation to keep records will be subject to fines in future. Fines of up to 30,000 euros could be imposed.Recording working hours
When documenting working hours, there is a lot for employers and employees to consider. Here is an overview of the most important aspects.

Why recording working hours is necessary

The purpose of recording working hours is to protect employees. The aim is to prevent them from being exposed to excessive daily or weekly working hours. It also ensures that the legal regulations can be checked by the supervisory authorities.

Legal basis and new regulations

In the labour law regulations, only Section 16 (2) of the German Working Hours Act (ArbZG) applies to the recording of working hours. According to this provision, employers are obliged to record working hours in excess of eight hours on working days and all working hours on Sundays and public holidays. The employer must keep the records for at least two years and submit them to the supervisory authority on request or send them for inspection.
A general obligation to record working hours did not therefore previously exist. This changed with the ruling of the Federal Labour Court (BAG) on 13 September 2022 (case no. 1 ABR 22/21). Employees' entire working hours must now be recorded. The court based its reasoning on an interpretation of Section 3 para. 2 no. 1 of the German Occupational Health and Safety Act (ArbSchG) in line with EU law. Specifically, Section 3 (2) No. 1 ArbSchG states that the employer must ensure suitable organisation and provide the necessary resources for the implementation of occupational health and safety measures. The obligation to record working hours applies with immediate effect. It is to be expected that the Act will be amended accordingly. The Federal Ministry of Labour and Social Affairs (BMAS) presented a legislative proposal in April 2023.

Procedures

Due to the lack of a legal basis, it is not yet clear how exactly working hours are to be recorded. Recording in accordance with the current requirements is no longer sufficient. However, the judgement of the BAG provides some guidance.
Recording does not necessarily have to be digital, but can also be in paper form. It is important that comprehensive and secure documentation takes place and that the rules on data protection are observed. The start and end of working hours, break times and overtime must be recorded. A shift schedule is not a sufficient basis for this.

It is possible to delegate the recording of working hours to employees if the employer provides an appropriate recording system. In this case, however, the accuracy of the information and the use of the system must be regularly checked by the employer. The obligation also applies to working from home and to trust-based working hours. The only exceptions to the obligation to record working hours are executive employees. These are in particular managers who are authorised to independently hire and fire employees. The requirements are therefore high. In view of the uncertain legal situation, it is advisable to keep detailed records.

Consequences of non-compliance

Due to the lack of a legal basis, there are no immediate consequences in the event of an offence. In order to impose a fine, the labour protection authority would first have to order the recording of working hours separately. According to the legislative proposal, violations of the obligation to keep records will be subject to fines in future. Fines of up to 30,000 euros could be imposed.