Andersen

The German Federal Ministry of Labor and Social Affairs (BMAS) recently published a draft bill on the amendment of the Working Hours Act (Arbeitszeitgesetz). It includes the central change that in the future employers are obliged to record the working time of their employees completely and without gaps electronically.

Why does the legislator wants to take action?

In 2019, the European Court of Justice (ECJ) ruled in its highly regarded so-called time clock judgment that EU member states are obliged to legally require employers to introduce an objective and reliable working time recording system. In addition, employers are required to record the working hours of their employees in full and without gaps.

However, the Working Hours Act does not yet provide for such a comprehensive obligation to record working hours. Apart from sector-specific exceptions, employers are currently only obliged under the Working Time Act to record working time in excess of eight hours per working day. According to the unanimous opinion at the time, it was therefore initially up to the legislator to react to the ECJ ruling and adapt the Working Time Act accordingly. However, the legislator remained inactive. Employers could therefore supposedly sit back and relax.

At the end of last year, the Federal Labor Court (BAG) decided, to the surprise of many, that a full working time recording obligation already existed by law. This does not (yet) follow from the Working Hours Act, but from the Occupational Health and Safety Act (Arbeitsschutzgesetz). The provision in Section 3 para. 2 No. 1 of the Occupational Health and Safety Act is to be interpreted "in conformity with EU law" in the light of the Working Time Directive and ECJ case law and already obliges employers to comprehensively record working time. Apart from dogmatic points of criticism, many questions remained open after the decision. These include, for example, the questions of whether this is the end of trust-based working time (Vertrauensarbeitszeit) and whether the working hours of senior executives (to whom the Working Time Act does not apply, but the Occupational Health and Safety Act does) must also be recorded in the future.

What does the draft bill provide for?

The BMAS took the decision of the BAG as an opportunity to quickly present a draft bill on the amendment of the Working Hours Act and other regulations. The current draft provides for the following changes, among others.

1. Employers are required to electronically record not only "overtime" but the beginning, end and duration of their employees' daily working hours. The documentation must be made on the same working day. The time sheets must be kept for two years.

2. Recording can be carried out by the employer himself or by a third party, whereby employers remain responsible for proper recording. It should be possible to delegate the recording of working time to employees, whereby suitable measures must be taken to ensure (e.g. random checks) that violations of the Working Time Act can be detected. This would mean that "trust-based working time light" would continue to be possible in the future.

3. A further collective agreement opening clause is to be anchored in the Working Time Act to allow for deviating collective agreement provisions on the mode (recording in non-electronic form) and time of recording working time (no same-day recording obligation). In addition, the recording of working time can be excluded for those employees "for whom the total working time cannot be measured or determined in advance due to the special characteristics of the activity performed." The same is to apply if the employee can determine the working time himself. Within the framework of the collective agreement, the parties to the collective agreement can also only open up the possibility for the operating parties to agree on deviating changes within the framework of a works or service agreement.

4. The draft bill provides for a transitional regulation according to which, depending on the size of the workforce, non-handwritten recording of working time is to remain permissible for a certain as yet unspecified period. For employers with up to ten employees as well as foreign employers without a domestic permanent establishment and with up to ten employees posted to Germany, handwritten recording of working time is to remain possible on a permanent basis.

5. In the future, violations of the record-keeping obligation will be punishable by fines of up to EUR 30,000.00.

Conclusion

At present, this is only a draft bill from the BMAS. It will therefore first be voted on by the government before a legislative process is initiated. Since, no law leaves the Bundestag in the same way as it enters, the further consultations and votes of the government parties, the Bundestag and the Bundesrat remain to be seen. Employers are nevertheless well advised to keep an eye on further developments and to think about suitable arrangements for recording working time at an early stage.

If you have any questions, please do not hesitate to contact us.