Global Compliance Desk – Germany

Germany: New Bill on Recording of Working Time

On April 18, 2023, a Draft Act on the Amendment of the Working Hours Act and other Provisions (RefE-ArbZG) (“the bill”) on the statutory implementation of the obligation to record working hours in Germany was released. Among other things, the Federal Ministry of Labor and Social Affairs (“BMAS”) lays down various provisions regarding the duty to record working hours electronically.  

Historical Background – On September 13, 2022, the German Federal Court (BAG) confirmed a comprehensive legal obligation of employers to record working hours. Please see our detailed blog on the BAG ruling on the Recording of Working Time.

The Draft Bill – The draft bill is an amendment to the Working Hours Act (in particular Section 16 ArbZG). The following are the proposed new obligations for employers:

• The employer is obliged to electronically record the beginning, end, and duration of the employee’s daily working hours on the day the work is performed. The employer shall keep a list of employees who have consented to deviations from the working times specified in the shift schedule, e.g., vacation, absences, and additional working times, separately electronically.  
• The employer can also record working time collectively by using and evaluating electronic shift plans. This applies under the condition that the beginning, end, and duration of the daily working time can be derived from the shift plan for the individual employee.
• The employer must keep the time sheets for a period of at least 2 years.
• A specific type of electronic record is not required. According to the justifications of the RefE-ArbZG, electronic applications such as apps on a mobile phone or the use of conventional spreadsheet programs (Excel) could be considered. 
• Working time must be recorded on the day the work is performed – deviations of up to seven days are possible by means of a collective bargaining agreement. 
• Delegation to Employees – The employee or a third party should also be able to record working hours, with the employer remaining responsible for proper recording. In addition, when determining a violation of the obligation to keep records, the occupational safety authorities should take into account whether the employer has properly informed those obliged to keep records and has carried out random checks. 
• Trust-based Working Time – A trust-based working time (Vertrauensarbeitszeit) with free planning of time allocation can still be agreed upon. Employees can continue to determine the start and end of work themselves. However, the employer must ensure they become aware of violations of the provisions of the ArbZG (eg, on the maximum permissible working hours or on the uninterrupted rest period after the end of the daily working time). 
• Right to Information -The ECJ requires that the system must be accessible to every employee. It is therefore prescribed that the employer must inform the employee of the recorded working time in an appropriate manner upon request. Upon request, he or she must hand over a printout of the working time records or send an electronic copy. 
• The works council may also inspect the working time records.
• The working time records required for monitoring compliance with the working time regulations must be kept in German and must be kept available in Germany.

Sanctions – An infringement of the obligation under the amended sec. 16 do directly result in a fine of up to €30,000.00.

Deviation by Collective Agreement: In accordance with the Bill, it can be permitted directly in a collective agreement or in a company agreement based on a collective agreement that – 

• The recording can be made in a non-electronic form.
• The recording can be made on another day, but no later than the end of the seventh calendar day following the day of work.
• The obligation to record does not apply to employees for whom the total working time is not measured or not determined in advance due to the special characteristics of the activity performed or can be determined by the employees themselves.

Employers with fewer than 250 employees will have two years, and employers with fewer than 50 employees will have five years, to introduce the system. All others have one year after entry into force. Small businesses with up to 10 employees and domestic employees will be allowed to permanently maintain non-electronic records.

Conclusion

It is important to note that this is currently only a draft bill. As a rule, the content of the bill may be revised several times. Only after a decision has been made by the Cabinet is it a formal government bill that can be voted on in Parliament. Nevertheless, it is recommended that employers consider appropriate working time recording without delay and prepare for its introduction.