Germany: Implementation of obligation to record working hours – pending changes to German Working Hours Act

The Federal Labour Court ruled on 13 September 2022 that the working time of employees must be recorded. This results from an interpretation of Section 3 (2) no. 1 of the German Occupational Health and Safety Act in conformity with EU law.

In light of this ruling and the 2019 ECJ ruling regarding working time recording, the Federal Ministry of Labour and Social Affairs (finally) published a draft bill to amend the German Working Hours Act on 18 April 2023. It seeks to regulate how the recording of working time  shall take place. The draft bill contains the following regulations:

Duty to keep records: Employers need to electronically record beginning, end and duration of the daily working time of employees on the day of work performance. Missed entries can be corrected later. A specific type of electronic recording is not prescribed, e.g. using an Excel sheet would also meet the requirements. The duty of working time recording can be delegated to employees/third parties. However, the employer remains responsible for proper recording.

Trust-based working time: Trust-based working time, where the employer does not seek to control when the employee worked for how many hours, is not abolished or limited by the draft, but only complemented by the obligation to record working time. If the employees decide for themselves when they work and when they do not, their times must nonetheless be recorded, but the employer does not have to control this (consistently). Employers only need to ensure that they become aware of violations of the provisions of the Working Hours Act. This can be done, for example, by a corresponding notification of an electronic working time recording system.

Right to information: Employees have a right to information about recorded working time. Employers must provide an (electronic) copy of the recorded times upon request. The works council may also inspect the records upon request in order to fulfil its obligations under Section 80 (1) of the Works Constitution Act.

Retention obligation: Companies must keep records of working time for at least two years. This should also apply to trust-based working time, even if compliance with working time does not have to be consistently monitored. The records must be kept in German and kept available in case of a control.

Collective agreements: The draft bill contains far-reaching options for collective bargaining and company parties. They can agree that the recording must not be in electronic form or does not have to be made on the same day, but at the latest within seven days after the work performance. Also, that the obligation to record working time does not apply to employees for whom the total working time is not measured or determined in advance or can be determined by the employees themselves because of the special characteristics of the activity. This applies for example to managers, distinguished experts and scientists who are not obliged to be present at the workplace at fixed times.

Transition periods: The draft bill provides for transitions periods, during which keeping manual records is sufficient. Only after the expiry of the transition period, electronic records need to be used.  The duration of the transition period depends on the employee numbers:

• Employers with more than 250 employees: 1 year
• Employers with less than 250 employees: 2 years
• Employers with less than 50 employees: 5 years
• Employers with up to ten employees are exempt from the obligation to record working hours electronically.

The transition periods would begin on the date the new law comes into force.

Administrative offence: The draft bill provides that a violation of the above regulations constitutes an administrative offence punishable by a fine of up to EUR 30,000.00.

Practical Point

• The draft bill is being discussed vividly. It remains to be seen when it will be finalized and what changes will still be made.
• If the recording of working hours is delegated to the employees, the employees must be informed about the obligation to record their working time and the records must be checked on a random basis.
• The recorded working time does not always equal the payable working time, for example if the employment contract contains a valid clause whereas overtime is deemed compensated with the base salary (to a certain extent).