Proposed law on electronic recording of all working time

At a glance

• Following a surprising decision from the Federal Labour Court in September 2022 that German employers are under a legal obligation to set up systems to record all working hours of employees, the German government has now introduced a proposal to bring this obligation into law.

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In 2019, the European Court of Justice (ECJ) ruled that employers are obliged to set up objective, reliable and accessible systems by which the daily working hours of employees can be recorded. The ECJ left EU Member States to introduce rules to reflect this ruling, and until now, no legislative action was taken in Germany.    

However, in September 2022, the German Federal Labour Law Court (Case No. 1 ABR 22/21), said that there was already an obligation on German employers to record all working time (not just overtime and Sunday working) deriving from Section 3 (2) No. 1 of the Occupational Health and Safety Act.

Following that decision, the German government took steps to implement a specific statutory law addressing time recording. The law is still in draft and will go through several revision and discussion rounds, so the final law may look different to this current proposal.

The proposal contains several changes to the German Working Hours Act and other regulations aimed at implementing this new concept around time recording.

The key features of the current proposal include:

• The employer must record the start, end and duration of daily working hours on the specific day that the work is performed.
• The recording must be made electronically and may be delegated to the employee, but the statutory responsibility lies with the employer.
• Delegating time recording will be possible for trust based working time. However, the employer must ensure that it is aware of any breaches of the law, so the time must all be recorded.
• Employees can request information about the working time records and must be handed a copy of the recording upon request.
• Records of working time must be kept in German and stored for two years.

Deviations are possible in a collective bargaining agreement or on the basis of a collective bargaining agreement in a works or service agreement in relation to certain aspects of the proposed law including:

• The obligation to record time electronically.
• The obligation to record time on the day the work is performed (the period can be prolonged up to seven days).
• For employees who can make their own decisions about the scope and division of their working time (e.g. executives or experts / scientists), exemptions can be implemented, but only via a collective bargaining agreement.

If the employer fails to keep complete records, to keep records in the prescribed manner, to keep records in a timely manner or to keep records properly, this is an administrative offence which can be punished with a fine of up to EUR 30,000.

The new law will take effect the first quarter after the date when the law comes into force. However, all employers will have at least one year before they are required to put the new electronic recordings systems in place. This deadline is extended to two years for employers with fewer than 250 employees and to five years for employers with fewer than 50 employees. Employers with fewer than ten employees are permitted to record working time in non-electronic form.