The Federal Labor Court decided on September 13, 2022, that employers in Germany must already systematically record their employees’ working hours (Ref. 1 ABR 22/21).
The obligation to record working hours in Germany so far only exists for overtime and Sunday work, explains the economic law firm MTR Rechtsanwälte. This is likely to end after the current decision of the Federal Labor Court. As the BAG clarified, the obligation to record working hours in Germany already exists.
In doing so, the BAG was based on 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 so far been no corresponding adjustment.
Now the BAG has pre-empted the legislator. It found that the obligation to record working hours already arises from § 3 para. 2 no. 1 of the Occupational Safety and Health Act (ArbSchG) in combination with the ECJ ruling.
The underlying case was about whether a works council has the right to initiate the introduction of an electronic working time recording system if such a system has not yet been introduced. The BAG did deny this, but only because the obligation to introduce a systematic time recording already arises from § 3 para. 2 no. 1 ArbSchG, and thus an initiative right of the works council is not necessary.
Even if the works council suffered a setback at first glance, the decision of the Erfurt judges is likely to have far-reaching consequences for employers, as they now have to systematically record their employees’ working hours. This also applies to employees in offices or administrations, where work has so far been more based on the principle of trust-based working time. Similarly, mobile working or home office is affected by the obligation to record working hours.
The judges have not made any stipulations on how working time is to be recorded. However, it is clear following the decision that it must be recorded. Employers should therefore address the introduction of a time recording system at an early stage.
Lawyers experienced in labor law can provide advice.
