In its decision of September 13, 2022 (reference number 1 ABR 22/21), the Federal Labor Court ruled that employers are obliged to operate a system with which the working hours worked by employees can be recorded. The Federal Labor Court derives this obligation from § 3 para. 2 no. 1 of the Occupational Safety and Health Act (ArbSchG). If such a system does not yet exist, it must be introduced.
According to § 3 Abs. 1 ArbSchG, the employer is obliged to take the necessary occupational safety and health measures, taking into account the circumstances that influence the safety and health of employees at work. The employer shall review the measures for their effectiveness and, if necessary, adapt them to changing circumstances. In doing so, he shall strive to improve the safety and health protection of employees.
Pursuant to Section 3 (2) no. 1, the employer shall ensure an appropriate organization and provide the necessary means for planning and implementing the measures pursuant to subsection (1) above, taking into account the type of activities and the number of employees.
The Federal Labor Court now derives from these provisions the employer's obligation to provide or introduce a working time recording system.
The consequences of this decision are not yet foreseeable. In its judgment of May 4, 2022, another senate of the Federal Labor Court ruled that the absence of a system for recording daily working hours in the company does not change the burden of proof and presentation in overtime proceedings to the detriment of the employer. In this case, too, the employee is still obliged to show from when to when he worked and what activities he performed (BAG, judgment of May 4, 2022 - 5 AZR 359/21). It remains to be seen whether the decision of the 1st Senate of September 13, 2022 will change this.
Since the 1st Senate explicitly derives the obligation to introduce a working time recording system from Section 3 (2) no. 1 of the Occupational Safety and Health Act (ArbSchG), violations of this requirement are not subject to fines, according to a preliminary assessment. While the Working Hours Act in § 22 regulates a wide range of circumstances that may incur a fine, the Occupational Safety and Health Act in § 25 only sanctions those who, either intentionally or negligently,
- violates a statutory instrument pursuant to Section 18 (1) or Section 19, insofar as it refers to this provision imposing fines for a specific offense, or
- as an employer or responsible person of an enforceable order under Section 22 (3) or as an employee of an enforceable order under Section 22 (3) sentence 1 no. 1
. The ArbSchG does not provide for a fine for possible violations of § 3.
Update December 9, 2022: Please also take a look at our follow-up report.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.