A few days ago, the German Federal Labor Court (“Bundesarbeitsgericht”, BAG) finally published the written reasons for a decision dated September 13, 2022, in which it found - unexpectedly for many - a far-reaching obligation to record daily working hours.

What exactly was at issue?

The subject of the decision was initially the question of whether a works council can force the employer to introduce electronic time recording - it cannot, or more precisely: it cannot limit its right of initiative to time recording (only) in electronic form. However, it does have a right of initiative with regard to the overall design of time recording, which it can also enforce by means of a conciliation board (“Einigungsstelle”).

Behind this dispute, which is based on works constitution law, however, lies a question, which affects all companies: is there an obligation to comprehensively record working time - in other words, a question of occupational health and safety law. The issue of remuneration, i.e. whether the employer must pay for overtime and who has to prove what, was not subject of this case.

Until now, there was only the (legal) obligation for employers to record working hours that exceed eight hours per working day. Already in 2019, the European Court of Justice (ECJ) ruled that this was not enough: there had to be an obligation to measure daily working time objectively, accessibly and reliably. This would have to be implemented by national legislators.

What did the BAG determine?

The BAG cannot enact any laws, but can only apply existing laws. A time recording act does not yet exist in Germany. However, the BAG derives this obligation of the employer from the framework provision § 3 para. 2 no. 1 Occupational Safety and Health Act (“Arbeitsschutzgesetz”).

Is the decision binding on companies in Germany, or will we have to wait and see what the legislator does?

This question is academic. Where there is a works council, it will know what it can do - and waiting is not necessarily the best option. In our opinion, there are better reasons for proactive action:

• If the working time is not recorded, this makes it more difficult to defend claims for remuneration. The employer would have had the obligation and was in a position to record the times. A breach of this obligation is likely to be at the expense of the employer
• Although the violation of the obligation determined by the BAG is not directly subject to a fine, unlike, for example, the non-compliance with the Evidence Act (“Nachweisgesetz”). Whether the authorities actually issue orders to record the times and and, if necessary, impose fines, however, should not really be waited for.
• However, a possible act on the recording of working time should not be awaited, but the court’s decision should be at most the trigger for an update of the time verification system. Experience shows that the legislator certainly has an ear to the market: What prevails in the coming months will hardly be ignored in the legislative process. And insofar as a future law restricts the co-determination rights of the works council again because it sets clear rules that no longer need to be filled in, waiting for it would be highly speculative and would probably have the purpose of minimizing the co-determination rights of the works council again rather than completely avoiding time recording.

What should be implemented in concrete terms?

First, the rules that determine what constitutes (remunerable) working time should be generally reviewed and adapted. In the future, employers must have a stronger self-interest in setting rules for the periods (after 10 p.m., on weekends) or circumstances (from cell phones, from vacation) in which employees are not expected work. Whether such rules are set by adapting employment contracts, by company agreement or by collective agreement depends on the details of the company and the contractual situation.

Attention should also be paid to how breaks are handled: When is work considered interrupted? How to also deal with small-scale breaks that are spread over the day? A private call, a WhatsApp or a coffee - what counts as a break, what as work? What is needed here is a sense of proportion rather than excessive regulation. If there is a works council, it must be involved.

Finally, and most importantly, employees must be required to record their daily working hours and to submit these to the employer in a timely manner or have them verified by the employer. Whether this is done electronically (automated by access systems or semi-automated by Excel) or by other systems for the subsequent documentation of the working hours  - the decisive factor is: the start and the end as well as the breaks must be documented (verifiably); lists with copy-and-paste entries "8.0" are unlikely to meet the requirements. The BAG explicitly requires that the system is not only made for optional use, but that actual use be made of it.

This also applies, almost without exception, to managers who have not had to record their times to date and who have practiced trust-based working time (“Vertrauensarbeitszeit”). In the future, their working hours will also have to be recorded and monitored, here not in order to influence compensation, but to comply with the rules of work (time) protection. This may be the greatest challenge for practice, and here the german  legal maxim may sometimes apply: "Where there's no plaintiff, there's no judge" (“Wo kein Kläger, da kein Richter”).

Conclusion

Whether now the works council appeals to the conciliation board (“Einigungsstelle”) or the employer takes action should be no more of a deciding factor than waiting for an act to record working hours. It is now time to address a system that effectively enforces the employee protection against unlimited working hours, with or without a works council.

We will be happy to assist you in this endeavor.