German Federal Labor Court requires employers to record working hours

In its ruling dated September 13, 2022 (1 ABR 22/21), the Federal Labor Court (Bundesarbeitsgericht – BAG) ruled that Section 3 (2) No. 1 ArbSchG (Arbeitsschutzgesetz or Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work) obliges the employer to introduce a system to record employees’ working hours. Interpreting this provision in accordance with Union law, the employer is legally obliged to record the working hours of employees.

On May 14, 2019, the ECJ had already ruled (C-55/18) that member states must require employers to set up a system to measure daily working time.

Both German lawmakers and general practice have assumed until recently that there is not yet a corresponding legal obligation under national law requiring employers in Germany to do so. The Federal Ministry of Labor is therefore already working on a legal bill.  The BAG takes a different view, seeing precisely this obligation in Section 3 (2) No. 1 ArbSchG.

Employers may therefore no longer wait for a special legal regulation to be implemented. The obligation to record working hours exists with immediate effect. It is not yet clear how far this obligation goes, as currently only a press release of the BAG ruling has been published. We expect that the reasons for the decision will provide more information.

A suitable system must be implemented with immediately. It should not matter whether this is done on paper, by means of a time card system or simply with an excel spreadsheet. It should also be possible to instruct the employee within the scope of the right of direction to record the working times in this system every day. It is not yet possible to predict how far an employer’s obligation to check goes and what concrete effects this ruling will have on trust-based working time, home office and mobile working.

We will come back to this as soon as the reasons for the BAG’s decision are available.