Germany FAQ Labour Law – Working Time Special

The European Court of Justice (ECJ) caused a stir in May 2019 with its so-called time clock ruling. In it, the ECJ had obliged the member states to introduce a system for recording working time. Since the landmark decision of the Federal Labour Court (BAG) of 13 September 2022 on the obligation to record time in the employment relationship, the topic of “recording working time” has once again moved into the focus of public attention. What needs to be considered from the employer’s point of view can be found in our FAQ. We are also happy to assist you with individual questions about working hours and their recording.

Groundbreaking decision of the Federal Labour Court of 13 September 2022

In its decision of 13 September 2022, the Federal Labour Court stated that the recording and documentation of the beginning, end and location of working hours is already mandatory under current law. That obligation arises from Paragraph 3(2)(1) of the Arbeitsschutzgesetz (Law on occupational health and safety, ‘the ArbSchG’), which requires the employer to create an ‘appropriate organisation’ for health protection. This also includes the recording of working time.

In the opinion of the Federal Labour Court, it is not sufficient merely to record overtime worked by employees. Rather, employers are obliged under § 3 sec. 2 no. 1 ArbSchG to introduce a system by which the beginning and end of daily working hours, including overtime, are recorded.

Do break times also have to be recorded?

The reasons for the decision of the Federal Labour Court do not contain a clear statement on the question of the extent to which break times must be recorded. However, the Federal Labour Court emphasises that it should be possible to review the daily and weekly maximum working hours. This is only possible if break times are also taken into account. It can therefore be assumed that break times are also subject to the recording obligation.

By when must a system for recording working time be introduced?

The Federal Labour Court has found that the obligation to keep records arises from applicable law (§ 3 para. 2 no. 1 ArbSchG). This means that the BAG did not “create” any new law, but merely “established”. There is therefore no “grace period”.

What sanctions threaten if no system for recording working time has yet been introduced in the company?

The Occupational Health and Safety Act does not contain any administrative offence or penal provisions with regard to the recording of working hours. However, violations of the obligation to record overtime/weekend work are already subject to fines (§ 22 para. 1 no. 9 ArbZG).

In addition, the competent authority can order the recording of working hours in accordance with § 22 ArbSchG, in the event of violations of such an order, a fine of up to EUR 25,30.000 may be imposed pursuant to § 00 ArbSchG. As a collective fine, this fine may be imposed cumulatively on the undertaking and increased tenfold on the undertaking; at the very least, however, there is a risk of the withdrawal of the economic advantage from the act (§ 30 OWiG).

Claims for damages by injured employees due to breach of the protection obligations arising from the employment contract are also not excluded.

Are certain groups of employees exempt from the obligation to register?

The reasons for the decision of the Federal Labour Court do not contain a conclusive assessment of the question of whether certain groups of employees – in particular executives – are/can be exempted from the obligation to register.

We believe that genuine executives within the meaning of § 5 Abs. 3 BetrVG are exempt from the obligation to register. Finally, Germany has expressly made use of the possibility of exemption for executives on the basis of the standardised image of the executive employee (see § 18 ArbZG). This assessment must be taken into account in the interpretation.

What are the options for recording working hours?

The Federal Labour Court has not specified any special form of recording working time. At present, employers should therefore be able to choose whether the data is recorded electronically, by means of an Excel spreadsheet or in paper form.

But the “objective, reliable and accessible system” demanded by the European Court of Justice in the so-called time clock judgment raises the question of whether a recording by means of an Excel table or a manual recording is actually sufficiently “tamper-proof”. In the long run, the implementation of a “tamper-proof” electronic system will probably be recommended.

It is already clear that the working time recording system must in any case not be limited to merely “collecting” the beginning and end of daily working time. Rather, this data must also be recorded, i.e. recorded.

Can time recording be transferred to employees?

The Bundesarbeitsgericht (Federal Labour Court) has clarified that, under EU law, it is not excluded to delegate the recording of the periods concerned as such to the employees. The recording of working time can thus also be delegated to the employees.

However, a delegation of the recording to the employees does not relieve the employer of his responsibility to ensure compliance with the working time record and the Working Hours Act. The employer must also keep track of the recording of working time in the case of delegation, e.g. by regular random checks.

Does the obligation to keep records mean an end to trust-based working hours?

If trust-based working time is understood to mean that employers only specify the scope of weekly or monthly working hours, but that the individual employees are basically left to the independent division of working hours, this is still possible even if working time is recorded. Nevertheless, the obligation to record working time inevitably goes hand in hand with a certain degree of control on employees.

However, trust-based working time in the sense of an activity of the employees without any recording of working time is not possible.

How long can an employee work per day?

The regular working day may not exceed 8 hours. An extension to up to 10 hours is possible if an average of 6 hours are not exceeded on weekdays within a compensation period of 24 calendar months or 8 weeks (§ 3 Working Hours Act, ArbZG).

How is the compensation period determined?

The compensation period is not limited to the calendar year, i.e. it can also be selected across calendar years. Nor does it necessarily have to follow the extension of regular working hours. It is sufficient if eight hours are achieved on average within an arbitrarily selected period of 6 calendar months or 24 weeks in which an extension of the regular working day working hours has taken place.

Can I also employ employees on Sundays and public holidays?

On Sundays and public holidays, there is a general ban on employment (§ 9 ArbZG). However, Paragraph 10 of the ArbZG provides for final exceptions for certain areas of employment and activities. In the case of (permissible) Sunday and holiday work, however, the employee must be granted a substitute day of rest (§ 11 para. 3 ArbZG).

What are the requirements for granting the substitute day of rest?

In the case of Sunday employment, the substitute day of rest must be granted within two weeks, in the case of public holiday employment within eight weeks. The substitute rest day is to be granted on a working day, whereby this does not have to be a “planned” working day, but also – e.g. in the case of a 5-day week – the regular work-free Saturday.

Can the employee work for more than a week at a time?

In the case of (permissible) Sunday and holiday employment, blocks of more than six working days in a row may occur – notwithstanding the principle of weekly work-free Sundays laid down in § 9 ArbZG. It should be noted, however, that in principle a weekly rest of 35 hours must be observed once within a reference period of one week (§ 11 Abs. 4 ArbZG).

Is it permissible to deviate from the Working Hours Act?

In the case of temporary emergencies or in exceptional cases, certain provisions of the Working Hours Act may be deviated from in accordance with § 14 ArbZG. However, the scope must be interpreted strictly. In principle, a derogation can only be permitted in individual cases for a limited period of time and a limited number of employees.

What happens in case of violations of the Working Hours Act?

Violations of the Working Hours Act can be punished as an administrative offence with a fine of up to EUR 30,000.00 per violation (§ 22 ArbZG). In addition, certain acts from the catalogue of § 22 ArbZG are also punishable (§ 23 ArbZG).

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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