Recording Working Time in Germany

According to a decision by the Federal Labor Court (BAG), which is the highest labor court in Germany, employers are obliged to record the entire working hours of their employees. This decision has far-reaching implications.

European Court of Justice (ECJ) and BAG Decisions

On May 14, 2019, the European Court of Justice ruled that member states must require employers to establish an objective, reliable, and accessible system to record the daily working hours of every employee (ECJ Case C-55/18 CCOO). The aim of the ECJ decision is to ensure that workers in the EU comply with minimum daily and weekly rest periods and the maximum average weekly working time. However, the exact design of the law was left to the member states.

The Federal Labor Court referenced this ECJ ruling in its decision on September 13, 2022. As a result, employers are required to introduce a system that records all working hours performed by employees (BAG - 1 ABR 22/21). This duty does not only mean providing a system but actually using it to record working hours.

Previous Legal Regulations on Working Time Recording

Currently, the German Working Hours Act (ArbZG) does not impose a general obligation to record all working hours. According to §16 (2) ArbZG, employers must record working hours that exceed the regular daily working time. Thus, overtime and work on Sundays and public holidays have already been subject to recording requirements.

Additional specific recording obligations already apply to:

• Minijobbers (marginally employed),

• Employees in sectors listed in the Act to Combat Illegal Employment,

• Road transport workers,

• Employees in the meat industry,

• Certain posted workers, and

• Certain temporary agency workers.

Until now, the prevailing opinion was that no general obligation existed under German law. Surprisingly, the BAG has now ruled that a general obligation to record working hours already applies.

Special Regulations for Certain Sectors

In sectors like construction, hospitality, or the meat industry, specific rules still apply: the start, end, and duration of daily working hours must be documented. Lists can be handwritten, and employees can record their hours themselves, but the employer should review and monitor these records. No signatures are required. Companies have one week to document working hours.

Is the Obligation Only in Germany?

No. The BAG refers to the ECJ’s ruling of September 13, 2022, which interprets the Working Time Directive. This directive requires all EU member states to implement the guidelines into national law. Therefore, the obligation applies in all EU countries.

How Exactly Must Employers Record Working Hours?

The exact details of documentation have not yet been defined. However, to ensure compliance with maximum working hours and rest periods, employers must record the start, end, and duration of each employee's daily working time.

How Must Working Time Be Recorded?

Currently, there is no prescribed form, and handwritten records are allowed.

Can Employers Delegate the Recording to Employees?

According to the Federal Ministry of Labor and Social Affairs (BMAS), employers can delegate the recording to employees, but they remain responsible for complying with occupational health and safety regulations.

Is Trust-Based Working Time Still Possible?

Yes. Trust-based working time refers to flexible models where employees decide when to work. Employers "trust" employees to fulfill their contractual obligations. Recording working hours does not conflict with such arrangements. However, maximum working hours and rest periods must still be observed.

What About Mobile Work?

The rules of the Working Hours Act apply regardless of work location, including home office. This means that daily maximum working hours and rest periods must already be observed for mobile work. The BMAS plans to propose a new legal framework for mobile work, but this has not yet been done.

Who Monitors Working Time Recording?

Primarily, the employer is responsible for compliance and must organize operations accordingly. While the Working Hours Act and Occupational Safety Act are federal laws, the federal states and their designated occupational safety authorities (e.g., trade supervisory offices) are responsible for monitoring and enforcing these regulations. Only they – and ultimately the courts – can make binding decisions. In case of violations, corrective actions or fines can be imposed, adjusted to the severity of the violation.

Draft Law 2023

The BMAS announced it would address the BAG decision and propose practical legal regulations. On April 18, 2023, it presented a draft law: "Act to Amend the Working Hours Act and Other Provisions." This is a ministerial draft, meaning it has not yet been adopted by the entire federal government.

Note: These regulations are not yet in force. This is currently only a draft. It is unclear when they will come into effect.

Planned New Regulations:

(1) Electronic Form with Exceptions; Transition Period

Every employer will be required to record the start, end, and duration of the daily working hours of all employees in electronic form. With this obligation for electronic recording, the draft law goes beyond the decision of the Federal Labor Court (BAG).

No specific method of electronic recording is prescribed. In addition to commonly used time tracking devices, other forms of electronic recording are also permitted, such as apps on a mobile phone or the use of standard spreadsheet programs (e.g., Excel). The use and evaluation of electronic shift schedules should also be possible, provided that the start, end, and duration of each employee’s daily working hours can be derived from them, and deviations from the scheduled working hours (e.g., vacation, absences, or additional working hours) are recorded separately in electronic form.

For small companies with up to ten employees, the draft law provides an exception to the electronic recording requirement: they may continue to record working hours manually. This also applies to companies without a place of business in Germany that send up to ten employees to work in Germany.

In addition, the draft law provides for a transition period for the electronic recording requirement, staggered by company size: the obligation to record electronically applies only one year after the law comes into force. Until then, manual recording remains permitted. For companies with fewer than 250 employees, this transition period is extended to two years, and for companies with fewer than 50 employees, it is extended to five years.

(2) Exempt Employee Groups

Generally, all employees are included. Exemptions apply only to groups already excluded, such as “executive employees” who are authorized to independently hire and dismiss staff – a very small group.

(3) Timing of Recording

Start, end, and duration of daily working time must be recorded on the same day.

(4) Delegation to Employees

Employers can delegate recording to employees but remain responsible for ensuring accuracy, including through spot checks.

(5) Trust-Based Working Time

Still possible. Employees can record their own time, and employers can waive controlling contractual working hours but must take suitable measures (e.g., automatic system alerts) to ensure compliance.

(6) Retention and Information Obligations

Employers must keep records for at least two years in German and provide employees with copies upon request.

(7) Collective Agreements

Deviations can be agreed upon in collective agreements, e.g., no electronic recording or delayed recording (up to seven calendar days later). Certain groups may be entirely exempt.

(8) Fines for Violations

Violations of recording obligations can result in fines of up to €30,000.