Uncertainty currently prevails in the German working world on the subject of working time recording. While certain recording obligations have been in place for a long time, there is still a lack of concrete legislation to fully implement the European requirements. This state of limbo leads to half-knowledge and misconceptions among all those involved. The following article sheds light on the current legal requirements, clarifies misunderstandings and provides an outlook on upcoming but not yet finalized developments. Find out which obligations already apply today, which recording methods are currently legally permissible and which changes could result from a current draft law in the future.
Legal situation: What already applies today
The German Working Hours Act has long stipulated that working hours in excess of eight hours per day must be documented. This basic rule is not new, but has been clarified and expanded by important court rulings. The so-called "time clock ruling" of the European Court of Justice (ECJ) from 2019 (case C-55/18), which obliges all EU member states to introduce an "objective, reliable and accessible system for recording working time", was particularly groundbreaking.
The Federal Labour Court (BAG) specified this European requirement in 2022 and ruled that the start, end and duration of daily working hours must be systematically recorded (case no. 1 ABR 22/21). In the opinion of Germany's highest labor court, this obligation already results from an interpretation of Section 3 (2) No. 1 of the Occupational Health and Safety Act (ArbSchG) in conformity with EU law.
The practical consequence of this is that companies are already obliged to implement a time recording system - regardless of whether a specific implementation law exists or not. This obligation applies to almost all employment relationships, with a few exceptions such as senior executives.
Recording methods: from the time clock to the app
A frequently asked question concerns the way in which working time is recorded. Currently, no law prescribes a specific form of recording. Employers are therefore free to choose the system that suits their business, as long as it is objective, reliable and accessible:
- Traditional time clocks and electronic time recording systems
- Excel spreadsheets or other digital records
- Special time recording apps
- Handwritten records (especially in smaller companies)
It is important that the chosen system documents the daily working times objectively and reliably. In many production companies, time recording systems such as time clocks have been standard for years. Office operations, on the other hand, often have to implement suitable solutions first.
However, it should be noted that a draft bill from the Federal Ministry of Labor in 2023 envisages making electronic time recording the norm in future. However, this draft is not yet law. According to this draft, electronic recording is to become mandatory for companies with more than 10 employees (with transitional periods), while manual recording will continue to be sufficient for small companies (up to 10 employees). The implementation of this draft is still pending and may be delayed.
]Special constellations: Home office and trust-based working hours
The obligation to record working hours applies regardless of where you work. Employees working from home must also document their working hours. This presents companies with practical challenges, as traditional clocking systems do not work here. Mobile apps or web-based solutions are a practical alternative.
The compatibility of working time recording and trust-based working time is being discussed in particular. Trust-based working time - a model in which employees can organize their working time independently - does not fundamentally contradict the obligation to record working time. However, the legal requirements regarding maximum working hours and rest periods must also be observed here and the start, end and duration of working hours must be documented.
The current trend in the political debate is to possibly make the maximum daily working hours more flexible in favour of a weekly approach (see Outlook). This could open up more scope for flexible working time models without abandoning the fundamental idea of protection.
Controls and sanctions: How is compliance checked?
Systematic monitoring of working time recording currently only takes place to a limited extent. The responsible supervisory authorities focus primarily on compliance with the statutory maximum working hours and impose corresponding fines in the event of violations. There is currently no comprehensive inspection of the recording systems themselves.
However, this does not mean that companies can ignore the requirements. The correct recording of working hours is also checked during ad hoc inspections, for example following complaints from employees or accidents at work. Violations of the existing obligation to implement a system in accordance with Section 3 ArbSchG can then be punished as an administrative offense and fined. In addition, inadequate time recording offers a potential target for labor law disputes, such as overtime pay or compliance with rest periods.
Practical example: IT company with a flexible working time model
For years, Software Solutions GmbH with 45 employees practiced a pure trust-based working time model without systematic time recording. Following the BAG ruling, the company introduced a web-based solution that can be used both at the workplace and on the move. Employees record the start and end of their working hours and breaks via an app or browser. To increase acceptance, the system was selected together with the employees. An important aspect: time recording is primarily used to document legal requirements and not to monitor performance. The flexible organization of working hours remains possible within the framework of company agreements. After initial skepticism, the system was well received, as it also creates more transparency for employees about their actual working hours.
Outlook: What will the (possible) future changes bring?
The current coalition agreement provided for changes, and a draft bill from 2023 fleshes out these plans. However, it is important to emphasize that these are planned changes that have not yet come into force and whose exact implementation date is uncertain (probably not before the end of 2025/beginning of 2026). The main points of the draft are:
Planned digitalization of time recording
It is becoming apparent that electronic time recording will become the standard in the medium term, as envisaged in the draft. However, manual recording is to remain possible for smaller companies (up to 10 employees). For larger companies, transitional periods are planned in the draft in order to cope with the changeover effort.
Discussed weekly working hours instead of maximum daily working hours
One flexibilization under discussion concerns the possible replacement of the maximum daily working time of eight or ten hours with a maximum weekly average of 48 hours. This would offer more leeway for the daily organization of working hours, but would have to be in line with the EU Working Time Directive and has not yet been decided.
Planned special regulations for trust-based working hours
The draft law indicates how trust-based working hours could be structured while retaining the obligation to record data. The exact structure and its practical feasibility remain to be seen until the law is actually passed.
Practical example: Craft business with different work situations
The Holzmann joinery with 12 employees was faced with the challenge of its employees working partly in the workshop and partly on construction sites. After consulting with the Chamber of Crafts, the company opted for a two-stage solution:
- In the workshop: Simple electronic terminal for logging on and off
- On construction sites: Mobile app with offline function The initial investment costs of around EUR 3,800 were quickly offset by improved project calculations and more precise invoicing. In addition, the time required for monthly payroll accounting was significantly reduced.
Conclusion and recommendations for action
The obligation to systematically record working hours is already a reality today, even if the law has yet to be specified (especially in electronic form). Employers would do well to proactively address the issue and implement suitable, legally compliant solutions.
Recommendations for employers
- Carry out an inventory: Check your current methods of recording working time for legal compliance (recording of start, end, duration).
- Evaluate suitable systems: Choose a recording system that fits your company structure and culture and meets current requirements. Take into account modern forms of work such as working from home.
- Involve employees: Provide comprehensive information about the necessity and design of working time recording at an early stage in order to create acceptance.
- Consider a company agreement: Ideally, regulate the details of working time recording in a company agreement, provided a works council exists.
Recommendations for employees
- Know your rights and obligations: Find out about the legal regulations on working hours and how they are recorded.
- Correct documentation: Use the systems provided conscientiously - also for your own protection.
- If you are unsure: If you have any questions about the use of time recording, contact your line manager or the works council.
Recording working hours need not be seen as a bureaucratic burden. If implemented correctly, it offers benefits to both employers and employees: more transparency, better health protection and a fair basis for remuneration and compensation for overtime. At the same time, flexible working models can continue to be practiced within the legal framework.
The upcoming legal specifications will hopefully create more legal certainty for all parties involved. Until then, a pragmatic but legally compliant implementation of the existing recording obligation is the best way to meet both the legal requirements and operational needs
