Duty to record working time: The BAG’s reasons for its decision are on the table

With its decision, the Federal Labour Court (BAG) has given direct effect to the ECJ decision of 14 May 2019 – C-55/18. The ECJ already ruled in 2019 that the Working Time Directive (2003/88/EC) can only be fully effective if the employer is obliged to introduce an objective, reliable and accessible system to measure the daily working time worked by employees in order to protect their safety and health. This is the only way to ensure that the European requirements of an upper limit of 48 hours of working time per week and a continuous rest period of 11 hours following the working day are respected. The German legislator assumed that this decision would not have any direct effect and that it would first be necessary to amend the national Working Time Act (“ArbzG”) in order to oblige private employers to record working time in accordance with the ECJ’s requirements. However, such an implementation has not yet taken place. However, the BAG has ruled that this obligation already follows from section 3 para. 2 no. 1 ArbSchG, the framework provision of the Occupational Health and Safety Act, when interpreted in conformity with EU law, and has thus now directly obliged all employers in Germany to act.

In the opinion of the BAG, according to the obligation standardised in section 3 ArbSchG to ensure occupational health and safety by a suitable organisation and the necessary means, taking into account the type of activity and the number of employees, there is in principle an obligation for employers to introduce a system for recording daily working time, which records the beginning and end and thus the duration of working time including overtime. The recording of working hours is therefore not a possible occupational health and safety measure that can be taken as a tried and tested means of ensuring health protection after a concrete risk assessment in accordance with section 5 ArbSchG of the work area, but a fundamental obligation.

Excluded groups of workers

The BAG exempts executive employees pursuant to section 5 (3) of the German Works Constitution Act (BetrVG) as well as chief physicians from the obligation to record working time.

The following exceptions exists to the generally postulated obligation to record working time: Firstly, all workers employed in the company are covered within the meaning of section 5 (1) sentence 1 BetrVG. However, the EU Working Time Directive also allows national legislators to make different provisions for individual groups of workers if the duration of their working time is not measured and/or predetermined or can be determined by the workers themselves due to special characteristics of the activity performed. In this respect, the German legislator has laid down provisions in sections 18 to 21 ArbZG for executive employees, chief physicians as well as employees in the public service, aviation and inland navigation

The BAG makes it clear that the German legislature can also create further exceptions, if necessary, by making use of the leeway provided by the Working Time Directive when amending the Working Time Act.

However, the obligation to record working time, which was established as a principle by the Federal Labour Court, does not allow it to be determined within the framework of the risk assessment to be carried out for individual areas according to the Occupational Health and Safety Act that recording working time is unnecessary as an occupational health and safety measure to reduce the identified risks.

Guidelines for the implementation of the commitment

In the absence of more specific regulations by the legislator, the BAG sets the following framework for the recording of working hours:

• It is not sufficient to merely provide employees with a system for recording working time. The employer must also be able to actually collect and record the data on working time and make it available to the authorities in the event of an inspection.
• The data collected must make it possible to verify the location of working time and compliance with the daily and weekly maximum working hours.
• The obligation to record working time may be delegated to the individual employee.
• The recording of working hours does not necessarily and without any exceptions have to be carried out electronically. Records in paper form may also be sufficient, especially when considering the size of the company.

Co-determination of the works council

Due to the existing legal obligation to record working time, the works council has no right of co-determination with regard to “whether”. However, the right of co-determination applies to the concrete arrangement as long as the legislator has not made any concretisations.

Especially in the area of occupational health and safety, the works council thus has an equal say. The BAG also points out that the objective of occupational health and safety cannot be subordinated to purely economic considerations.

Practical advice

What do employers need to implement now?

Employers have a duty to act and must take the following into account when implementing it:

• Checking which employees belong to the group of executive employees and are therefore not subject to the obligation to record working hours.
• Checking how working time recording should be implemented for the different work areas. Even now, simple electronic tools that can be used to record the beginning and end of work blocks are freely available. In a pinch, a paper timesheet or an Excel spreadsheet kept by the employee can also be used.
• Works agreements on the introduction and design of the recording of working hours shall be negotiated with due regard to co-determination at the workplace. Co-determination on occupational health and safety also exists if the recording of working hours is not to be carried out by a technical device within the meaning of section 87, subsection 1, no. 6, BetrVG.
• It is advisable to record not only the start and end of working time but also break and interruption times and thus only the “net working time”.
• As working time recording is about occupational health and safety and not remuneration, working time subject to remuneration, which may include travel time, may have to be recorded separately.
• Training of employees: Working time in the sense of occupational health and safety is only the working time during which the employee is willing and ready to work. So-called “own business” activities – for example, making private telephone calls – are not working time, even if they are carried out in the workplace.
• Within the framework of a compliance management system, the employer’s obligation to control working hours should be delegated to specific persons and the system created should be continuously monitored and improved.
• As part of the organisation of occupational health and safety, the employer should carry out risk assessments independently of the recording of working hours and also for executive employees in order to improve and ensure health protection.

What does this mean for trust-based working time?

Trust-based working time, in which employees themselves determine the start, location and end of their working time, remains possible. In essence, trust-based working time means that employees can organise their working time largely independently and on their own responsibility. Only the volume of weekly or monthly working time is determined by the employer, but not the beginning and end. However, the employee with trust-based working time must know and comply with the basic rules of the Working Time Act and the employer must ensure, by monitoring the recording of working hours, that the mandatory and non-mandatory requirements of health protection are demonstrably complied with.

Introduction of a time recording system and employee data protection

Regardless of whether time recording is to be done in writing or digitally:

In any case, records of employees’ working hours (start, duration, end of working hours) are personal data in the sense of the GDPR and the Federal Data Protection Act (BDSG), so that employers must also observe the corresponding data protection requirements.

In principle, different ways of recording working time can be implemented in a data protection-compliant manner, although it remains necessary to check the respective working time recording system in detail for compliance with data protection law. Employers should exclude time recording systems that use biometric data, e.g. fingerprints or facial scans, as these can hardly be used in compliance with data protection law. The reason for this is that these biometric data are special categories of personal data (Article 9 of the GDPR), which can and may only be processed in accordance with data protection law under very strict conditions.

Employers should now also take the innovations as an opportunity to review and, if necessary, adjust existing access authorisations to employee data generated by the time recording system. With both old and new systems for recording working time, it should be noted that only a very limited group of people should have access to employees’ time recording data. In any case, access authorisations should be limited to a definable group of persons. Typically, the employees of the human resources department and, if applicable, the managers responsible for the individual employees should be granted access authorisations. Beyond that, however, no other employees may have access to the time recording data on a horizontal level.

Consequences of violations?

What is the threat if the employer does not comply with the recording obligation? What are the sanctions?

According to section 21 ArbSchG, the competent Land authorities must carry out a certain number of routine inspections and checks on compliance with the ArbSchG in companies every year. This will include checking whether a system for recording working time is in place. In the event of employer violations of obligations under the Occupational Health and Safety Act, the authority may, according to section 22 para. 3 ArbSchG, in individual cases order what measures to be taken by the employer and the persons responsible or the employees must take to fulfil the obligations. For example, the introduction of a time recording system can be ordered. Only if an employer fails to comply with this order can a fine of up to 30,000 euros be imposed in accordance with section 25 Para. 1 No. 2a ArbSchG.

However, employers should bear in mind that there is already an obligation under section 16 para. 2 ArbZG to record working hours exceeding 8 hours per day and to keep the records for 2 years in case of inspection by the authorities. If this legal obligation is violated, a fine can be imposed immediately.

Outlook

A new draft bill for the revision of the Working Time Act has been announced. The Minister of Labour, Heil, has announced that “in the first quarter of 2023, his house will probably make a practical proposal for the design of working time recording in the Working Time Act”.