Obligation to keep records of working hours – Federal Labour Court (BAG) “overtakes” legislator

In its decision of 13 September 2022, the Federal Labour Court (“Bundesarbeitsgericht” – BAG) clarified a legal issue that had long been controversial in German labour law: Already under current law, the employer is obliged to introduce a system that can be used to record the hours worked by employees. The BAG does not derive this from the Working Hours Act, which only stipulates an obligation to record working time that exceeds 8 hours per working day and work performed on Sundays and public holidays; and the BAG neither does derive from further recording obligations that do already exist for some sectors and special employment relationships, e.g. for mini-jobs, only.

Surprisingly, the BAG rather locates the obligation to keep records under section 3 of the Labour Protection Act. As a result, the scope of application is broader than under the Working Hours Act and applies to all employees, e.g. also to executive employees within the meaning of the Works Constitution Act, to chief physicians, but also to other groups such as trainees, interns, volunteers and persons similar to employees with the exception of home workers. 

With this decision, the BAG has “overtaken” the legislator who, since a ruling by the ECJ in 2019, was actually called upon to revise the Working Time Act in favour of a complete obligation to record working time.

It remains to be seen what short-term influence the ruling will have on company practice in detail. Since a violation of Section 3 of the Labour Protection Act is not punishable by law, most employers do not currently face serious sanctions for failing to keep complete records of working hours. The decision is also not likely to change the burden of proof in overtime proceedings due to the consistent BAG case law confirmed only this year – albeit before the decision of 13 September 2022.

And even if it is now possible for authorities to also check the complete recording of working time and to issue orders if this is not done, fines can only be imposed if the order is not complied with. 

Therefore, many companies will currently still shy away from introducing a complete time recording system, especially since new problems could arise after the introduction of a working time recording system in connection with the observance of permissible working time and rest breaks – one only has to think of employees with trust-based working time. After the publication of the reasons for the judgement, it is at least certain that no electronic recording of working time is currently required. The BAG states that employers may take into account the particularities of the employees’ respective areas of activity and the peculiarities of the company when making their choice. Depending on the activity and the company, records in paper form may also be sufficient as long as – and here the BAG takes the legislator to task – no legal regulation prescribes otherwise.

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