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The current legal situation regarding recording of working time in Germany
23. September 2020
The recording of working time is common practice in many companies. Labour law at federal and European level regulates the area of recording working times. Similarly, the labour courts in Germany are repeatedly concerned with the recording of working hours and the associated rights and obligations of employers and employees. In May of last year, there was a ruling by the European Court of Justice, which the labour court in Emden followed in February of this year. We believe that this development will have consequences. We have here compiled what you need to know about this.
Recording working time in Germany. Applicable law from § 16 (2) Working Hours Act
Employers in Germany are only obliged to document the working hours of their employees that exceed the working hours of eight hours per day. The period of the employee’s work does not have to be recorded. The documentation obligation therefore only applies to overtime. In practice, companies usually assign the recording of overtime to their employees.
No rule without exception: In these areas, there is an obligation to keep records of working hours even during regular working hours
In some special areas, there is a comprehensive obligation for the employer to keep records of working hours. It applies to the following employees:
Employees in road transport (§21 a VII Working Hours Act),
Groups of persons in certain sectors (§ 17 of the Minimum Wage Act in conjunction with § 2a of the Undeclared Work Act), which are listed in §2a of the Undeclared Work Act,
marginally employed persons, defined according to § 8 (1) of the Social Security Code IV
And groups of persons who work within the scope of special collective agreements (§19 of the Posted Workers Act).
The judgment of the European Court of Justice (ECJ) of 14 May 2019 – C 55/18
At European level, workers‘ rights are strengthened. When transposing the Working Time Directive 2003/88/EC, Member States are obliged to apply the employee rights defined in Articles 3, 5 and 6b and in Article 31(II) of the Charter of Fundamental Rights. These rules lay down minimum rest periods and a maximum weekly working time. However, they do not stipulate any obligation for comprehensive working time recording. However, the ECJ assumes that a time recording system would be helpful for the enforcement of employee rights. „In order to ensure the practical effectiveness of the rights provided for by Directive 2003/88 and of the fundamental right enshrined in Article 31(II) of the Charter of Fundamental Rights, Member States must therefore oblige employers to introduce an objective, reliable and accessible system for measuring the daily working time worked by each employee“.
Judgment of the Emden Labour Court of 20 February 2020 – 2 Ca 94/19
Following the ruling of the European Court of Justice, the Labour Court in Emden goes one-step further in its ruling of February 2020. The Labour Court ruled that employers are generally obliged to record the working hours of their employees. This is the first German first-instance labour court to follow the ECJ’s guidelines.
We consider it probable that in the coming weeks and months other courts will follow the opinion of the Emden Labour Court. Employers are advised to follow this development and to think about practicable and unbureaucratic solutions. Especially recently, there have been numerous digital systems for recording working hours. We will be happy to help you with the legal assessment and implementation. Please call us.