Employment and Social Security Law

Draft bill of the Federal Ministry of Labour and Social Affairs on the recording of working time

Written by

Dr. Nicole Elert

Manuel Klingenberg

On 18.04.2023, the Federal Ministry of Labor and Social Affairs published the first draft bill on the “Amendment of the Working Hours Act and other regulations”. The topic to record all working time coming back into focus again.

What was the background?

Following the decision of 13.09.2022 of the Federal Labor Court (Bundesarbeitsgericht - BAG), the Federal Ministry of Labor and Social Affairs published on 18.04.2023 the first draft bill on the “Amendment of the Working Hours Act and other regulations (“Ministerial Draft”). This Ministerial Draft is intended to implement the requirements of the European Court of Justice (ECJ) and the BAG on the recording of working time.

More than ever before, it is now time for companies to introduce regulations on the recording of working time in compliance with co-determination and data protection requirements. This is in particular important, as employers with regulated working time models are more attractive to new employees and increase employee satisfaction. Especially in the "war for talents", employers can gain an advantage and should act as soon as possible.

The main aspects of the bill?

The draft law includes the following new regulations:

  • The employer shall be obliged to record beginning, end and duration of the daily working time of employees. The recording has to be done on the day the work is carried out. Further to the requirements of the BAG and the ECJ, time recording shall be made electronically.  
  • So called trust-based working time models (Vertrauensarbeitszeit) can be implemented and the employer can delegate the recording to the employee or a third party. However, the ultimate responsibility of the working time recording remains with the employer: this means that the employer can decide against controlling the contractually agreed working time. However, the employer has to "take appropriate measures" to ensure that it becomes aware of violations of the working time regulations such as maximum duration and distribution of working hours and rest periods. The common practice of giving employees complete freedom to organize and record their working time should thus no longer be permissible.
  • The employee shall receive information on the recorded working time and a copy of the records upon request.
  • The employer shall keep the records for the entire duration of the employment, but for a maximum of 2 years. The records must be kept in German language. Upon request of the supervisory authority, the working time records shall be kept available at the place of employment.
  • Deviations of these principles can be agreed upon in a collective bargaining agreement itself or on the basis of a collective bargaining agreement in a works or service agreement with the works council: In these exceptional cases, paper records can be kept and the records can be made later than on the first day of work. It is also possible to dispense from the recording in relation to employees for whom the working time may not be measured or determined or is self-determined by the employee due to the special characteristics of the job. However, without a provision in a collective bargaining agreement allowing to deviate from the general working time rules, it is not possible to conclude a deviating works agreement.
  • There will be special transition periods for smaller companies in relation to the electronic recording obligation:
    o    For companies with less than 250 employees, electronic recording will only apply up to two years after the law comes into force, for employers with less than 50 employees up to five years after the law comes into force.
    o    In small enterprises with a maximum of ten employees or enterprises without a permanent establishment in Germany and with up to ten posted employees to Germany, working time does not have to be recorded electronically for an unlimited period.

Practical advice

With the publication of the draft bill, it is now clear that there will be a legal obligation to record all working hours digitally. However, rules must be observed when introducing digital processes. These include data protection and co-determination.

With our Working Time Compliance Check, we evaluate the status of your working time models and guidelines with regard to time recording /time accounts and the implementation in HR and leave systems. Our analysis provides a specific overview of your current HR structures from a legal, procedural and technical perspective.

Following this analysis, we develop customized solutions for your company in a holistic approach. Do you have a works council? Then you have to observe co-determination rights regarding to the selection and detailed configuration of working time recording. Accordingly, we support you in modifying existing systems and processes as well as adapting existing IT work agreements. This can also include the introduction of temporary technical solutions for minimum documentation. It may also be necessary to adapt your operational processes.

Finally, we advise on the selection and configuration of a new time recording system for you and advise on the implementation of such a system: This includes a market and requirements analysis, interface adaptation, data migration, provider governance as well as an implementation under labour law aspects, including the drafting of suitable IT work agreements.

Your Experts

Dr. Nicole Elert, Attorney at Law, Specialist Lawyer for Labor Law

Manuel Klingenberg, Attorney at Law, Specialist Lawyer for Labor Law

The experts and the contact persons of our employment law practice group, which contains more than 60 members, will be happy to answer any further questions you may have on the draft bill for your business situation or planning.