News on the recording of working time
Back in September, the German Federal Labor Court (BAG) ruled that the working hours of employees must already be recorded in general - under current law. This is said to follow not from the Working Hours Act, but from Section 3 (2) No. 1 of the Occupational Health and Safety Act. The BAG had decided this in a dispute about the scope of co-determination of a works council. The reasons for the decision were then published in December (BAG, decision dated September 13, 2022, 1 ABR 21/22).
This supposed "Erfurt drumbeat" or "time clock decision" has already been the subject of intense discussion in the media, HR practice and labor law experts. However, the reasons for the decision, which were published on the 2nd of Advent, only provided limited information for operational implementation.
According to the decision, employers must have an operational system for recording the daily working time worked by employees, which includes the start and end of working time as well as overtime. Working time can be recorded in analog or electronic/digital form. Accordingly, paper records are also sufficient. The introduction of a time clock or a working time recording program is therefore not generally mandatory. It should still be possible to delegate time recording to employees. However, simply offering employees the option of voluntarily using an existing working time recording system will not be sufficient.
The fog is clearing somewhat. However, the key questions still cannot be answered conclusively. Above all, trust-based working time, which is valued by many companies and managers, is under scrutiny. We assume that a well thought-out and balanced system of trust-based working time will remain possible in the future. However, the rules of the game and responsibilities must be clearly defined. An "everyone does what they want" system will probably no longer be permissible (but it hasn't been in the past either).
In 2023, the focus will also be on Berlin. Legislators are called upon to finally provide companies and employees with a practical working time law that ensures a healthy working time environment but also enables flexibility in a modern and digital working world.
According to internal information, a concrete proposal for reforming working time regulations is to be drafted by the Federal Ministry of Labor and Social Affairs as early as the beginning of 2023 and introduced into the legislative process. We will monitor this development closely and keep you informed. If you would like to have an initial labor law check of your current time recording model carried out now, please do not hesitate to contact us.
Author of this article and
Attorney at Law | Labor Law Specialist