Freitag, 09.12.2022
Time tracking requirement
What do employers need to do now?
from
Ralph MuthersLawyer
Specialist in labor law
Give me a call: 0261 - 404 99 69
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As you may have gathered from the media, the Federal Labor Court ruled on September 13, 2022 that companies are obliged to record the working hours of their employees.
The reasons for the decision of September 13, 2022 have been available for a few days. According to these, employers are already obliged to record their employees' working hours, namely the start and end of working hours, their total duration including overtime. It is not sufficient for employers to merely provide this system for the employees to use at their discretion. The time tracking system must be used. The Federal Labor Court states that working hours do not necessarily have to be recorded electronically. As long as the German legislature has not issued any more specific regulations, no particular form of recording is prescribed. Working hours can therefore also be recorded in paper form. Delegation to the employee is also permissible (in which case the employee must then record the times themselves).
The Federal Ministry of Labor has announced that it will present a draft for a new law on time tracking requirements in the first quarter of 2023. It remains to be seen exactly what this regulation will look like. In any case, it seems quite possible that the announced draft law will provide for exceptions to the time tracking requirement for certain employees. According to the case law of the European Court of Justice and the Federal Labor Court, the time tracking requirement does not necessarily have to extend to employees "for whom a member state has provided for exceptions because the duration of their working hours cannot be measured and/or predetermined due to the special characteristics of the work performed or can be determined by the employees themselves." In this way, case law has opened the door a little for the German legislator to make exceptions.
In view of this case law and the announced draft law, employers are advised to familiarize themselves with a possible working time recording system in a timely manner. Conversely, however, according to current estimates, there is no reason for panic for those who do not yet have a system in place. This is because there are currently no immediate fines for violations. The Federal Labor Court derives the obligation to record working hours from § 3 ArbSchG. There are no fines for violations of this standard. However, the responsible labor protection authority can order on the basis of § 22 para. 3 ArbSchG that the employer has to take measures to fulfill the obligation under the Occupational Safety and Health Act. This would then also include the obligation under § 3 ArbSchG to record working hours. If the employer then violates this order, a fine may be imposed under § 25 ArbSchG.
Please do not hesitate to contact us if you have any questions.
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.