Every second hour of overtime is not paid. After all, the Federal Labor Court obliges all employers to log working hours. The federal government now wants to hurry to present its draft law. However, that would not be necessary – the obligation already applies.

Since the Federal Labor Court (BAG) announced its decision on recording working hours on September 13, there has been nationwide discussion and speculation. The Erfurt judges have now published the reasons for their decision in writing. The most important questions and answers:

What does timekeeping mean?

The European Court of Justice (ECJ) in Luxembourg ruled in 2019 that employers must “record” the beginning and end of their employees’ working hours. This means the full working time. Recording only overtime, as was previously mandatory in Germany, is therefore not sufficient.

What are the goals of working time recording?

According to surveys by the Institute for Labor Market and Occupational Research (IAB) of the Federal Employment Agency, 893 million or a good 52 percent of all overtime was not paid last year. The ECJ and now also the BAG also refer to occupational health and safety: only recording the entire working time can lead to the existing upper limit of usually 48 hours per week being adhered to. BAG President Inken Gallner summarized it as follows during the verbal pronouncement of the verdict: Time recording is also a “protection against self-exploitation and self-exploitation”.

Does the working time have to be recorded immediately?

Yes, because the BAG derives the obligation to record working hours from the Occupational Safety and Health Act, which is to be interpreted in accordance with EU requirements. A change in the law is therefore not necessary in principle. The traffic light parties have nevertheless announced a legislative initiative in their coalition agreement to explicitly implement the ECJ ruling. Penalties for violations would then probably also be laid down. The Federal Government now wants to examine the reasoning for the judgment. “Probably in the first quarter of 2023,” the Ministry of Labor will then make a “practicable proposal for the design of working time recording” by law, a spokeswoman said.

Can there be exceptions?

Yes, according to the BAG, exceptions are possible “because of special characteristics of the activity carried out”. However, these must be determined by law. In Germany, there are such exceptions in the Working Hours Act, particularly for executives and other executives.

How should working hours be recorded?

The BAG has not made any specifications here. Electronically or on paper – as long as the legislator does not make any specifications, everything is allowed. Companies can also choose different forms for different groups of employees. Only the recording of working hours must actually take place. According to the BAG, offering employees the opportunity to do this is not enough.

What will become of the so-called trust-based working hours?

Trusted working hours mean that the employer does not control the times. According to the BAG decision, this remains possible in such a way that the employees concerned record their working times themselves without being checked. But there must also be some kind of recording here.

What is the role of works councils?

You have a right of co-determination in questions of occupational safety. However, the BAG is not clear on the question of whether this also includes a “right of initiative”. Only then could works councils force companies to start recording working hours. Works councils cannot demand and enforce electronic recording of working hours.

(This article was first published on Saturday, December 10, 2022.)