In a landmark ruling on the recording of working hours, the Federal Labor Court has decided that employers are obliged to introduce a working time recording system. Dr. Hans Geisler summarizes for you the effects of this decision and what innovations can be expected.
On Sept. 13, 2022, the Federal Labor Court ruled that employers are obligated under Section 3 (2) No. 1 of the Occupational Safety and Health Act to introduce a system that can be used to record the hours worked by employees. Until this ruling by the Federal Labor Court (BAG), legal experts in case law and literature were unanimous in assuming that, at least up to now, there has been no fundamental legal obligation to document working hours. Such a requirement is only expressly regulated by law in accordance with the Working Hours Act (there for working hours in excess of 8 hours per working day) and in the context of marginal employment relationships in accordance with the Minimum Wage Act.
The BAG has now decided that a general documentation obligation already exists under the existing legal situation and justifies this with a provision from the Occupational Health and Safety Act (ArbSchG). In this respect, Section 3 (2) No. 1 ArbSchG already directly obliges the employer to document the working hours for reasons of employee health protection.
The BAG interprets this provision in conformity with European law and refers in this respect to a decision of the ECJ of 14.05.2019 (Ref.: C-55/18). In the context of this decision, the ECJ stated that member states of the European Union must oblige employers to establish an objective, reliable and accessible system with which the daily working time of each employee can be measured.
The BAG now derives the obligation existing in Germany to record the entire working time of employees from the interpretation of Section 3 (2) No. 1 ArbSchG under European Union law.
Explicit legal regulation comes
Since a violation of the ArbSchG regulation is not generally subject to a fine, the German government plans to explicitly regulate the obligation to record working hours in the Working Hours Act (ArbZG). In April of this year, the responsible Federal Ministry of Labor and Social Affairs (BMAS) prepared a draft bill on the recording of working hours in the Working Hours Act (ArbZG) and the Youth Employment Protection Act. This is currently being discussed within the government.
Although this draft bill still has to be agreed and has to go through the formal legislative process, it remains the case that, taking into account the BAG ruling, there is already an obligation to record working hours, but violations of this are generally sanction-free.
However, if the competent supervisory authority takes action on the basis of an enforceable order, fines may be imposed.
Requirements for the recording of working hours according to the current draft legislation
The draft bill supplementing the Working Time Act (ArbZG-E) includes some new provisions: Section 16 (2) sentence 1 ArbZG-E provides for an obligation on the part of the employer to record the beginning, end and duration of the working time of employees on a daily basis.
The draft bill thus already differs significantly from the obligation to document the working hours of marginally employed persons under the MiLoG, according to which the obligation is only weekly. Accordingly, the draft bill provides for a more time-regulated recording of working hours through shorter intervals of time recording.
Pursuant to Section 16 (2) Sentence 1 ArbZG-E, the recording of working time is to be carried out electronically, but it is to be possible to deviate from this regulation by or on the basis of a collective agreement pursuant to Section 16 (7) No. 1 ArbZG-E. According to Section 16 (3) ArbZG-E, the employer shall be allowed to transfer the recording of working time to third parties. This includes, in particular, the transfer of the recording obligation to superiors, to external third parties or to the employee himself.
When transferring the recording obligation to the employee, the employer will be allowed to waive the verification of the contractually agreed working time. However, in order for him to become aware of violations of the statutory working time and rest period, he must ensure appropriate measures. The employer will continue to be responsible for ensuring that records are kept properly.
Confidential working time remains possible
The draft bill also provides that the use of trust-based working time will continue to be possible. Trusted working time is a flexible working time model in which the employee can determine the start and end of the contractually agreed working time on his or her own responsibility, provided that he or she fulfills his or her contractual work obligation.
According to Section 16 (4) ArbZG-E, however, the employer must ensure that it is aware of all violations of the provisions of the Working Hours Act on the duration and location of working hours and rest periods.
For the further use of the working time model of trust-based work, this means in practice that the trust-based working time must be set out by a corresponding report of the electronic system of working time recording. This means that even in the case of trusted work, there is an obligation to record. However, the Working Time Act is not intended to oblige the employer to check the contractually agreed trust-based working time.
Pursuant to Section 16 (5) ArbZG-E, the employer is to be obligated to disclose the recorded working time at the employee's request. This obligation has a considerable consequence, particularly in the context of the assertion of overtime compensation.
If the employee asserts claims for remuneration for overtime worked, he has the burden of proof and explanation with regard to the arrangement and occurrence of the overtime.
At least as far as the occurrence of overtime is concerned, it will be easier for employees to prove this in the future, as the employer is obliged to provide information and to surrender it. However, it remains the case that the employee must still prove that overtime was ordered.
Different regulations depending on the size of the company
For the transitional period until the entry into force of this new version of the law, Section 16 (8) p. 1 f. ArbZG-E that the formal requirement of the recording obligation (recording in electronic form) will apply one year after the law comes into force.
For employers with less than 250 employees, the transitional regulation is to apply for two years, with less than 50 employees for a full five years. Under the transitional arrangement, it will be sufficient if working time is recorded in handwritten form until the new version comes into force.
The obligation to record working time in electronic form, on the other hand, is not to apply to those employers who employ ten or fewer employees. This follows from Section 16 (8) sentence 3 ArbZG-E. However, this does not affect the obligation to document working time on a daily basis.
Conclusion
Companies should - if employees are employed - now at the latest come up with measures and systems to comply with electronic form, if this has not already been done.
In the future, violations of these regulations will lead to sanctions, in particular fines, in contrast to the previous provisions of the ArbSchG. It is precisely for this reason that employers should address the requirements of the new version of the Working Hours Act as early as possible and take appropriate measures to comply with these requirements.
The multitude of requirements to be complied with, which the Temporary Employment Act stipulates, are difficult to comply with and control without digital support and overviews.
Source and image source: BODYMEDIA
Published on: 26 September 2023