Reed Smith Client Alerts

At the end of 2022, the German Federal Labour Court (BAG) took a landmark decision regarding the recording of working time – a decision at the intersection of employment law and data protection law. Until now, the German Working Time Act (ArbZG) does not contain an explicit obligation to record the working hours of all employees. Only overtime, Sunday work, and holiday work had to be documented. In its new decision, however, the BAG states that employers are now obliged to introduce a system for recording the entire working time of their employees (working time recording system) (BAG, 1 ABR 22/21).

According to the BAG, the legal obligation for employers to introduce a working time recording system stems from Section 3(2) No. 1 of the German Occupational Health and Safety Act (ArbSchG), which stipulates that employers must enable "suitable organization" and provide the necessary means for this. In the background to this BAG decision is a landmark decision by the European Court of Justice (CJEU) in 2019, according to which all EU member states are required to oblige all employers to introduce an "objective, reliable, and accessible system" that documents the work performed by their employees (CJEU, C-55/18).

Call to action for employers

Employers do not need to go into panic mode, but equally, they should not wait for the legislator to pass a new law.

Employers who do not have a working time recording system in place should begin the process of implementing such a system to record start and finish times, the total duration of daily working time, and breaks.

For employers who already have a working time recording system in place, the focus should be on the possible need to adapt the system to meet the new requirements. Employers can choose any form of working time recording system, be it manual or electronic.

Time recording can be delegated to employees, but the employer remains responsible for establishing and running the working time recording system. Correct use of the system by employees should therefore be monitored regularly.

Companies with a works council must involve it in decision-making around the arrangement (the “how”) of the working time recording system.