The Federal Labor Court decided in its resolution of September 13, 2022, that employers in Germany must already systematically record the working hours of their employees (Ref: 1 ABR 22/21).
The obligation to record working hours in Germany has so far only existed for overtime and Sunday work, explains the law firm MTR Rechtsanwälte. This is likely to change after the current decision of the Federal Labor Court. As the BAG clarified, the obligation to record working hours already exists in Germany.
With this, the BAG aligned itself with the so-called time clock ruling of the European Court of Justice from May 14, 2019. The ECJ decided that employers must establish a system for daily recording of their employees’ working hours. However, in German labor law, there has been no corresponding adaptation so far.
Now the BAG has anticipated the legislator. It determined that the obligation to record working hours already arises from § 3 Abs. 2 Nr. 1 of the Occupational Safety and Health Act (ArbSchG) in combination with the ECJ ruling.
The underlying case concerned whether a works council has an initiative right to introduce an electronic time recording system if such a system has not yet been introduced. The BAG denied this, but only because the obligation to introduce systematic time recording already arises from § 3 Abs. 2 Nr. 1 ArbSchG and thus an initiative right of the works council is not necessary.
Even if the works council seemingly faced a defeat at first glance, the decision of the Erfurt judges is likely to have far-reaching consequences for employers, as they must now systematically record the working hours of their employees. This also applies to employees in offices or administrations, where work is usually based on the principle of trust-based working hours. Mobile working or home office is also affected by the obligation to record working hours.
Although the judges did not make any specifications on how working hours should be recorded, it is clear from the decision that they must be recorded. Employers should, therefore, engage with the introduction of a time recording system at an early stage.
Experienced labor law attorneys can provide advice.
