BAG clarifies obligation to log working hours in Germany

According to a ruling of Germany’s Federal Labour Court (BAG) from September 13, 2022, employers in Germany should already be systematically keeping records of the number of hours worked by their employees (case ref.: 1 ABR 22/21).

Previously, the obligation to keep track of working hours only extended to overtime and work on Sundays. We at the commercial law firm MTR Rechtsanwälte can now report, however, that with the Court having found that a general obligation to track working hours already exists, this no longer appears to be the case.

The BAG’s judgment was itself based on the so-called “time clock ruling” of the European Court of Justice (ECJ) from May 14, 2019. In that case, the latter established that employers are required to put in place a system for keeping track of the number of hours their employees work per day. With German legislators taking their time in making the necessary legal changes, the Federal Labor Court went ahead and beat them to it, ruling that a general obligation to log working hours already exists by virtue of Section 3(2) no. 1 of Germany’s Occupational Health and Safety Act (ArbSchG) in conjunction with the ECJ judgment.

The issue in the case that came before the BAG was whether a works council had a right of initiative to establish an electronic timekeeping system for working hours in the absence of such a system at the time. While the Court answered in the negative, it did so only because it concluded that the works council had no need of a right of initiative given that the obligation to implement systematic timekeeping was already established by Section 3(2) no. 1 ArbSchG.

Although the works council appears at first glance to have suffered a defeat, the Federal Labour Court’s decision will have far-reaching consequences for employers, who will have to systematically track the number of hours worked by their employees going forward. This includes those working in offices or administrations where a more trust-based approach to working time has existed until now, and it also extends to employees working from home or remotely.

While the judges did not specify how working hours ought to be logged, it is certainly clear from the ruling that records must be kept. Employers should therefore get to work setting up a timekeeping system without delay.

Lawyers versed in employment and labor law can provide counsel.