The return of the time stamp clock? According to a recent ruling oft he BAG, employers are obliged to record the working hours of their employees

According to a press release of the BAG on the ruling dated 13.09.2022 (Ref.: 1 ABR 22/21), Section 3 of the Occupational Health and Safety Act obliges employers to introduce a system for recording the working hours worked by employees.

The latest decision of the BAG is based on a judgment of the ECJ dated 14.05.2019 (Case C-55/18 [CCOO]). The ECJ had ruled in 2019 that the entire duration of the daily working time of each employee must be recorded. Thus, there should be no exceptions. In German law, this requirement has not been fulfilled to date. Currently, for example, only Section 16 of the Working Hours Act stipulates that working hours in excess of the regular working day, i.e. more than eight hours per working day, or on Sundays and public holidays, must be recorded.

However, according to the decision of the ECJ, the aim of the Working Time Directive 2003/88/EC is precisely to ensure both that the maximum weekly working time is not exceeded and that the minimum daily and weekly rest periods are observed in all cases. The consequences of the ECJ's decision were controversially discussed. While some proclaimed the end of trust-based working time, others saw the legislature as having a duty to act, while still others assumed no need for action at all. The prevailing opinion so far has been that the ECJ's 2019 decision obligates the EU member states only, but not the individual employer. The BAG in its recent decision is apparently taking a different view. The written reasoning for the ruling are not yet available.

However, it can be assumed that the BAG decision will have a significant impact on trust-based working time. While it was previously possible to "lean back" and wait for the legislature to take action, this is no longer the case following the clear positioning of the BAG.

However, neither the ECJ nor the BAG have made any specifications as to how time recording must be carried out in concrete terms. It would be conceivable, for example, that in areas in which typically only self-recording by employees can be considered (e.g. mobile work), the recording obligation can also be delegated to the respective employees. In addition to recording on paper, Excel files or other software and IT applications could also be used. In cases of self-recording, however, employers are then obligated to effectively check the records due to the requirements of EU law.

SNB will be happy to assist you with any questions regarding this topic and all other problem areas under labor law.

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