Following on from the German Federal Employment Court (BAG) decision in September 2022, that deemed that employers in Germany needed to comprehensively record employees’ working time (case reference 1 ABR 22/21), there have now been further developments in the German labour law surrounding recording working time.
Releasing an officially unpublished draft bill on 18 April 2023, the Federal Ministry of Labour and Social Affairs has taken a first step towards reforming the Working Time Act (Arbeitszeitgesetz, “ArbZG”).
What is the existing German labour law?
In 2019, the European Court of Justice announced they would require companies to record the daily working time of their employees in full. In context, this was understood to mean that all companies across Europe would need to record the start, end and duration of daily working time. The exact means of doing this wasn’t specified, but it needed to be done in a system that was objective, reliable and accessible.
At the time, questions were raised as to whether or not the obligation to record time in this way already existed within the Working Time Act (ArbZG), and therefore already applied to employers in Germany.
However, the guidance surrounding working time in Germany mostly only demanded tracking of hours in specific use cases. For example, to track the hours of workers on minimum wage, or to track the hours of those in certain sectors (ie. Construction and hospitality) to protect them from exploitative practises.
This was all in line with the EU Working Time Directive, which stipulates that you cannot work more than 48 hours a week on average, which is normally calculated over a period of 17 weeks.
What is the update to the German labour law?
Dated 18 April 2023, the Federal Ministry of Labour and Social Affairs has put forward an officially unpublished draft bill which aims to reform the Working Time Act (Arbeitszeitgesetz, “ArbZG”).
This is due to the German legislator being called upon to standardise the details of the recording of working time in Germany, following on from the Federal Labour Court decision in September 2022.
This previous update, dated 13 September 2022, specified that an obligation existed for employers in Germany to comprehensively record employees’ working time (case reference 1 ABR 22/21), above and beyond the general time recording duty already contained with the Labour Protection Act.
Because this draft bill is in line with the decision already put forward by the Federal Labour Court, there are not really any surprising amendments, and it’s in line with what most employers in Germany were expecting.
What do these working time updates mean for employers in Germany?
This new bill has not yet been passed, but when it does, it will not only apply to German employers but also international employers with employees in Germany, so it’s important that everyone is aware of how these changes impact them.
The full working day must be recorded
This draft stipulates that the beginning, end and duration of daily working time must be recorded. Breaks don’t necessarily need to be recorded in full, but it should be easy to draw a conclusion that the legal breaks are being given, based on the beginning and end time, along with the recorded duration of working time.
Before now, such full time recording hasn’t been necessary, so organisations may have to overhaul the way they currently approach their time recording, and may need new or more comprehensive systems putting in place to assist them.
The working time should be recorded electronically
The actual case law has left open the form in which the records are to be made, however the draft law generally calls for electronic recording. The only permanent exception to this specified is for small companies (up to 10 employees) and foreign companies without a permanent establishment in Germany (up to 10 employees in Germany).
It’s likely that even without specification, most employers would opt for an electronic recording system, due to the heavy admin burden of low-tech options such as timesheets or Excel spreadsheets.
Implementing an intelligent absence management and time tracking software like edays will minimise the admin involved. The system allows you to submit timesheets in a convenient way (with the added benefit of being able to assign time to certain activities or projects) and allows you to automatically allocate legal minimum break times and legal maximum working hours.
The responsibility for recording time
As part of this latest update, the responsibility to record working time sits firmly with employers, but the bill does stipulate that they may delegate the actual recording of time to employees or another third party. In practise, a lot of employers may have to take that up, given that the bill also states that the full working time of the day must be recorded on the day the work is performed.
Ultimately though, the employer remains responsible for the data, for the obligation to record working time, and for maintaining proper records for at least two years. The records must be prepared in German and kept available in Germany.
Preparing for the changes ahead
While a lot of these changes were expected due to the ongoing development of recording working time in Germany, it’s important to remember that this bill is still a first draft. Therefore, some further changes could still be announced before the bill comes into law, which is due to come into force at the beginning of the quarter after it is promulgated.
Given the current timelines, this could be as early as 1 July 2023, so businesses must make sure they are preparing for these changes and getting systems into place so that they are compliant from the get-go (especially since a breach of the record-keeping obligation, is being threatened with a fine of up to EUR 30,000).
With a system like edays, there’s no need to let these upcoming changes be a burden though. Our time submission feature allows you to easily record working time, and triggers can be set to ensure you’re compliant with local laws (such as minimum break times or maximum daily/weekly working hours).
We specialise in global absence and leave management, so not only will the recorded working time be automatically synched up with planned leave and unplanned absences, but we can also provide language packs and compliance with local laws for those who are perhaps not based in Germany, but for whom this update will require them to keep German records.
If you want to learn more about our Time Submission feature, book a personalised demo today.
Jenni Littlehales is a marketing professional and an experienced author with a background in a wide variety of industries. Her understanding of people, wellbeing and associated challenges give a unique perspective in the evolving landscape of HR and technology.