It has been clear since May 2019: recording working hours is mandatory according to ECJ judgement! The Federal Labour Court followed suit in September 2022 and the first draft bill from the Federal Ministry of Labour has been available since April 2023. Can politicians agree on a binding law on electronic time recording in 2024?
We are currently examining how a law on working time recording can also be implemented in smaller companies without creating a great deal of bureaucracy. So what happens next with the planned amendment to the Working Hours Act? We have summarised all previous developments, milestones and current prospects for you in this blog.
Table of contents - What you can expect:
Is time recording mandatory?
Worth knowing: Draft law on working time recording
Mandatory recording of working hours
Freedom instead of surveillance - what employers need to know
The federal government is currently examining how a law on working time recording (also for smaller companies) can be implemented - without causing excessive bureaucratisation. However, the results of this review are not expected to be available until the second quarter of 2024. In short, the expected law on working time recording is still a long time coming. But why is it taking so long?
The German government is currently awaiting the results of a project investigating how the Working time recording for small companies too can be introduced without placing an excessive burden on them. This information comes from a communication from the German Bundestag dated 5 January 2024, which mainly deals with the development of overtime worked in Germany.
It is unlikely that a new bill will be drafted before the project results have been viewed and analysed. The obligation to record working hours electronically, with a few exceptions, as envisaged in the current draft bill is one of the controversial points that has not yet led to an agreed bill in the coalition. There is also another topic of discussion: the combination of working time recording and additional flexibilisation of working hours - as demanded by the FDP, for example.
How did the landmark ECJ judgement come about in 2019? The discussion surrounding the obligation to record working hours began when the Spanish trade union CCOO filed a lawsuit against Deutsche Bank in Spain. Why did this happen? The employee representatives demanded the implementation of a system to record all working hours. In their opinion, the number of overtime hours could only be determined correctly if all working hours were documented. At the time, over 50 per cent of overtime worked in Spain was not recorded. The National Court of Justice in Madrid then referred the dispute to the European Court of Justice (ECJ).
On 14 May 2019, the judges in Luxembourg ruled in accordance with the EU Working Time Directive and the Charter of Fundamental Rights of the European Union that the daily working time must be fully recorded. They called on the member states to enact regulations that oblige employers to introduce a system for measuring daily working hours. This is necessary to ensure that working hours are not exceeded. The member states must ensure that the rights of employees are safeguarded. The member states themselves can determine which measures are to be used for this purpose in their labour law. According to the ECJ judgement, the data collected on working hours must be objective and reliable. Employers and employees must have equal access to the data on actual working hours in order to be able to prove compliance with the directives to the competent authorities.
On 13 September 2022, the Federal Labour Court (BAG) ruled that there is an obligation to record working hours in Germany. The BAG's time clock judgement applies to all companies based in Germany, regardless of their size or the existence of a works council.
Companies that do not comply with this obligation to record working hours are in an "unlawful situation" and risk possible offences. These offences against the Occupational Health and Safety Act can be punished with fines of up to 25,000 euros in accordance with Section 25 of the ArbSchG.
On 3 December 2022, the written grounds for the BAG's landmark judgement were published. Time clock judgement published. It stated that it was not enough to simply provide a time recording system; this system also had to be used. Since this date at the latest, German employers and employees have been obliged to record their working hours accurately. This also applies to agreed trust-based working hours. The form in which working hours are recorded is up to the employer. Whether by time clock, via software or in writing on a piece of paper - the court gives employers room for manoeuvre.
The draft bill stipulates that working hours must be recorded electronically. This measure is intended to enable improved monitoring of recorded working hours.
What data must be recorded?
What exceptions are there in the draft law?
What are the advantages of the draft bill?
Recording working hours also helps employers to keep track of their employees' statutory maximum working hours and minimum rest periods, which in turn contributes to the health and safety of employees.
On 26 May 2023, the Bundestag debated the CDU/CSU parliamentary group's motion entitled "Reduce bureaucracy when recording working hours - Enable more flexible working" (20/6909). Following the debate, the bill was referred to the Committee on Labour and Social Affairs for lead deliberation. The motion stipulates that employers should record their employees' working hours in order to comply with the ruling of the European Court of Justice (ECJ) from May 2019.
| Party | Position |
| CDU/CSU |
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| SPD |
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| Alliance 90/The Greens |
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| FDP |
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| The Left |
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| AfD |
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The CDU/CSU proposal provides for a new law on the recording of working hours Flexible models and allow trust-based working hours. The type of working time recording is the responsibility of the employer. The ECJ judgement from May 2019 obliges EU member states to introduce working time recording. The CDU/CSU parliamentary group criticises the Federal Ministry of Labour's draft bill as unbalanced and bureaucratic.
When it comes to the SPD Member of Parliament Mathias Papendieck the law on recording working hours would have been passed long ago. Above all, he sees opportunities in using such a law to combat wage dumping and secure the minimum wage. This is also the view of the Federal Labour Court. The landmark judgement was necessary in order to control maximum working hours and rest periods, whereby the details of working time recording can be determined by politicians.
The CDU/CSU and the FDP are in favour of retaining the model of trust-based working hours. Companies should continue to have the option of not checking the actual hours worked by their employees. This regulation affects around 20 per cent of all employees in Germany. Mr Papendieck, a member of the SPD, is opposed to this. He emphasises that Mobile time recording can also be done conveniently via apps. As an employee, you can clock in digitally on your mobile phone in the morning and record the end of work in the evening - regardless of whether you are working from home or at another location.
And what happens now?
Prepare yourself for the fact that there will probably be a law on working time recording in Germany in 2024. To fulfil these legal requirements and at the same time reduce the bureaucratic burden of regular tasks, you already have the right partner at your side with ZEP.
Our software not only ensures legally compliant digital time recording, but also enables the digitalisation and automation of various business areas - from simple time recording to comprehensive project management, you can quickly and easily integrate holiday management, project planning and your complete project controlling into your company.
In any case, it makes sense - regardless of the political and/or legal situation - to deal with the issue of time recording now. Because: Time recording is mandatory! And it has been for almost 5 years. With or without the law.
Recording working hours is important as it helps to ensure compliance with legal regulations such as maximum working hours and minimum rest periods. Accurate documentation also allows you as an employer to improve productivity and efficiency within the company and ensure fair pay.
In the context of the law on working time recording, it is important to strike a balance between the need for time recording to comply with legal requirements and the protection of employee autonomy. While time recording fulfils the legal requirements, you should avoid an excessive focus on control in order to maintain the trust and motivation of your employees.
A working environment that promotes freedom and personal responsibility contributes to a healthy work culture and higher employee satisfaction in the long term.
Although the situation has changed since the ECJ ruling in 2019 and the subsequent BAG timepiece judgement Although a lot has been done since 2022, a binding law on working time recording in Germany is still a long time coming. Politicians are intensively examining how such a regulation can also be implemented for smaller companies without creating too much bureaucracy. The results of this review are not expected to be available until the second quarter of 2024. This shows that the discussion on this topic is far from over.
It is clear that the introduction of such a law is a complex challenge that must take various interests and concerns into account. Until a law on working time recording is finally passed, it remains important that companies prepare themselves now for possible legal requirements and implement suitable solutions for time-saving and legally compliant working time recording.
Ultimately, a balance should always be struck between compliance with legal regulations and the protection of employee autonomy in order to promote a healthy working culture.
The working time recording data may be viewed by the following parties: the works council, the individual employees and the employer. Access by third parties is only permitted if the person concerned has expressly given their consent.
When recording working hours, the start, duration and end of the daily working time must be recorded. This serves to monitor and ensure compliance with legal requirements such as maximum working hours and minimum rest periods.
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Mobile time recording apps are indispensable in a changing working world, enable accurate time recording and offer several advantages. The ZEP app is a convenient solution with a wide range of functions.
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