The German Federal Labor Court (Bundesarbeitsgericht, BAG) caused a major stir with its decision of September 13, 2022 (Case No. 1 ABR 22/21) on the obligation of employers to record the working hours of their employees (we previously informed). The reasons for this landmark decision have now been published. These provide information on the details of how a working time recording system is to be designed.
The major details at a glance
Obligation to introduce a working time recording system
- Employers are required pursuant to § 3 (2) No. 1 of the German Occupational Health and Safety Act (Arbeitsschutzgesetz, ArbSchG) to introduce a system with to record all working hours. According to this framework provision, the employer must ensure “suitable organizational arrangements” and provide the “necessary resources” for planning and implementing the measures pursuant to § 3 (1) ArbSchG, taking into account the nature of the activities and the number of employees. Under the BAG’s reasoning, the statutory provision, when understood in conformity with the European Union law, also includes the - fundamental - obligation of employers to introduce a system for recording the daily working time worked by their employees, which records the beginning and end and thus the duration of working time, including overtime. In the opinion of the BAG, this ensures that the regulations on maximum working hours and rest periods - which are intended to protect the health of employees - are observed.
Obligation to record, survey of data alone is not sufficient
- The BAG states that the working time recording system must not be limited to merely “surveying” the start and end of daily working time (including overtime). Rather, this data must also be collected and thus recorded. Otherwise - according to the BAG - neither the position of the daily working hours nor compliance with the daily and weekly maximum working hours would be verifiable or accessible for inspection by the competent authorities.
Introduction of a working time recording system for discretionary use not sufficient
- According to the BAG, the obligation to introduce a working time recording system is not limited to the fact that an employer makes such a system available to employees for their optional use. Rather, such a system shall actually be used. It must be used.
Obligation to record working time of executive employees unresolved
- The employer’s obligation to introduce and use a working time recording system exists in any case for all employees employed in the company within the meaning of § 5 (1) sentence 1 of the German Works Council Constitution Act (Betriebsverfassungsgesetz, BetrVG). However, whether the obligation to record time also applies to executive employees has not yet been clarified and is disputed. Employers who want to be “ on the safe side” in this respect should therefore consider extending time recording to executive employees for the time being.
Recording of working time not necessarily in electronic form / delegation to employees
- In its decision, the BAG explicitly refers to the requirements of the European Court of Justice, according to which an “objective, reliable and accessible” working time recording system must be introduced to measure the daily working time worked by employees (ECJ of May 14, 2019 - C-55/18). However, the highest German labor court fortunately also states in its decision that - as long as the legislator has not (yet) made any more concrete regulations - there is room for flexibility, within the framework of which, among other things, the “form” of this system is also to be determined. The recording of working hours does not have to be carried out electronically without exception. Rather, depending on the activity and the company, records in paper form could be sufficient. It is also not excluded to delegate the recording of the relevant times as such to the employees.
However, the BAG stated that in the selection and detailed design of the respective working time recording system, it must be taken into account that the improvement of the safety and health of employees at work are objectives which may not be subordinated to purely economic considerations.
Co-determination of the works council
- With regard to the “whether” of the introduction of a working time recording system, the works council has no right of co-determination, since - as the BAG explains in detail - there is already a legal obligation for employers to introduce such a system. The BAG also rejects a right of initiative of the works council with regard to a specific form of working time recording, e.g. in electronic form. With regard to the design (the “how”) of a working time recording system to be used in the company, however, the works council has a say and can - without restriction to a specific form - also assert a right of initiative in this respect.
Effective immediately, employers are required to implement and use an objective, reliable and accessible working time recording system to record all employees’ working hours. There shall be no transitional period. Fortunately, however, employers still have considerable leeway in this respect. It is therefore conceivable that working time recording systems could be designed in a wide variety of ways, which on the one hand comply with the legal requirements outlined by the BAG, but on the other hand can also take into account the specific circumstances of individual employers - e.g. the nature of the employees’ areas of activity or the size of the company.
Should employers already be using working time recording systems, they should be checked to see whether they comply with the current legal requirements or whether they need to be adapted. Employers who do not currently use a system to record all working hours (not just overtime) are advised to introduce such a system.
Indeed, a violation of § 3 (2) No. 1 ArbSchG by not introducing a working time recording system is not directly punishable by a fine. In such case, however, the competent occupational health and safety authority may issue an enforceable order to introduce such a system (§ 22 (3) ArbSchG). Violations of this provision by the employer constitute an administrative offense that can be punished with a fine of up to EUR 30,000.
Of course, we will be happy to advise you on the design and introduction of working time recording systems.