New Working Hours Act: Time clock obligation could be a motor for renewal

The Federal Labor Court (BAG) has published the justification for the much-noticed decision, according to which employers are obliged to record the beginning and end of the employees' daily working hours (Az.: 1 ABR 22/21).

The BAG did not justify its decision with the German Working Hours Act, but with Section 3 Paragraph 2 No. 1 of the Occupational Safety and Health Act (ArbSchG), according to which employers must ensure that the organization is compliant with occupational safety and health.

An interpretation of this requirement that conforms to European law also includes the obligation to introduce and use a system for recording working hours in which the beginning and end and thus the duration of working hours, including overtime, are documented objectively and reliably.

However, the BAG does not make any specific specifications for the type of working time recording.

This does not necessarily have to be electronic, but can also be done in Excel spreadsheets or in paper form, for example.

"Return to the Time Clock"

Many see this decision as a step backwards.

They criticize a “return to the time clock”.

For example, the FDP took it as an opportunity to renew its call for a more flexible working hours law, which it had already formulated in October 2020.

The recording must also be compatible with modern working time models such as trust-based working hours, and documentation requirements must be limited “to the most unbureaucratic level”.

Time recording must continue to be delegated to the employee.

At least in the last point, the grounds for the BAG's decision contain a clear indication: According to the Erfurt judges, even under the provisions of Union law, it is not impossible to delegate the recording of the relevant times as such to the employees.

In addition, however, some questions remain unanswered even after the reasons for the decision have been published.

In particular, it is not clear from the reasons for the decision whether the obligation to record working hours also includes the recording of break times (which is to be assumed) and whether the working hours of managerial employees must also be recorded (although there are good arguments against it).

It is now up to the legislature to clear up this ambiguity and to make clear regulations that can be implemented in practice.

How to implement the timekeeping?

The legislator should take this opportunity to modernize the Working Time Act as a whole and not just limit itself to the rules on recording working time.

The European requirements provide sufficient scope for this.

The corresponding directive provides for a maximum weekly working time of 48 hours and a daily rest period of 11 hours as well as break times, but does not regulate a maximum working time on a working day.

The Federal Ministry of Labor is already working on a corresponding draft law, which is not expected until the first quarter of next year.

For many companies, this raises the question of how to deal with the BAG's decision until then.

Opinions differ on this.

The fact is that it is not possible for many employers to introduce a sensible working time recording system overnight.

Especially since a risk assessment may have to be carried out in advance under the Occupational Health and Safety Act.

The fact that violations of § 3 ArbSchG are not immediately subject to fines brings some relief.

Organizations should, however, start exploring time tracking options now and take reasonable preparatory actions.

The author is a lawyer at the law firm Noerr.