The Federal Labor Court (Bundesarbeitsgericht – BAG) (“FLC”) just published the reasons for its decision on the recording of working hours (BAG, September 13, 2022 – 1 ABR 22/21).

Here are the key take-aways for all employers with employees on the ground in Germany:

Legal obligation to record working hours – valid immediately

• Employers are required by law to record the beginning and end, and thus the duration, of working hours, including overtime.
• All employers with employees on the ground in Germany are in scope, there is no employee threshold.
• There is no transition period. Companies must comply with this obligation with immediate effect, as it follows existing law (Section 3 (2) No. 1 of the German Occupational Health and Safety Act [ArbSchG]).

System requirements

• The recording of working time must be carried out by an objective, reliable and accessible system that not only collects the data, but records it so that compliance with the daily and weekly maximum working hours can be verified.
• There is some leeway for employers as to the form in which the data is recorded (electronically or in paper form) and by whom (employer or employees).

Executive employees are out of scope

• The obligation to record working time extends to all employees with the exception of executive employees (leitende Angestellte). Although this is not entirely clear from the decision, the reasons must be interpreted in this way.
• The legislator could regulate further exceptions.

Co-Determination

• The works council has no right of co-determination on the question of whether working time is recorded, but it has a say on how working time is recorded, i.e. the design of the system.
• Co-determination covers in particular
  • selection of the system, which may also take into account peculiarities of the employees' fields of activity and peculiarities of the company, especially its size;
  • deciding whether to record working time electronically or in paper form and whether to delegate it to employees.

What Happens in Case of Non-Compliance?

• A first-time offender will not be subject to fines. In case of repeated non-compliance and specific orders by the authority the employer may be subject to fines of up to EUR 30,000.

What Employers Need To Do Now

• Check whether an existing system for recording working time meets the requirements of the FLC.
• Check which system for recording working time should be introduced, including form of recording (electronic or paper) and by whom (employer or employees).
• Negotiations with the works council, if any, on the adaptation of existing system or introduction of a new one.