Update: Announced reform of the Working Time Act is still a long time coming

After the draft legislation for the ArbZG was leaked on 18 April 2023, which provided for the obligation of employers to (electronically) record working hours within the ArbZG as had been previously ruled by the Federal Labour Court (BAG), it was initially expected that an official draft legislation would be presented to the German parliament before the parliament’s 2023 summer break. Contrary to expectations, this did not happen. Rather, there appears to be no sign of progress in the implementation of the planned legislation within the second half of 2023. Instead, the process seems to be stagnating for the time being: The topic of the "Working Time Act" is not to be found neither on the agenda of the German parliament for 2023 (no readings are planned in this regard) nor on the agenda of the Federal Ministry of Labour and Social Affairs (BMAS). Since the leaked draft legislation in April 2023, the BMAS has not released any further information or even published an official draft legislation. It must therefore be assumed that the legal situation will not change until at least Easter 2024.

Wrap-up: The decision of the BAG

In its ruling of 13 September 2022 (Ref.: 1 ABR 22/21), the BAG confirmed an obligation of employers to record working hours of all employees. For its part, the BAG’s decision was based on the requirements of European working time law and the ruling of the European Court of Justice (ECJ) of 14 May 2019 (case no.: C-55/18).

According to the decision, employers are obliged under the German Occupational Health and Safety Act (ArbSchG) to introduce a system for recording working hours that records the start, end and duration of the daily working hours of employees. The BAG derived the obligation to record working hours from Section 3 (2) No. 1 ArbSchG. In this context, the Court held that there was scope of discretion with regard to the form of the time recording system, so that the recording did not necessarily have to be carried out electronically.

No change to the Working Time Act for the time being – The rules that now apply

As the proposed new regulations of the BMAS have not yet been implemented in the law, the existing regulations of the ArbZG continue to apply. In addition, employers must also observe the above described ruling of the BAG. In summary, this means for employers:

• Employers are obliged to record the networking time (start, end, duration) of their employees. Break times, in particular the specific time when a break is taken during the working day, must not be recorded.
• The use of an electronic system is not required. In this respect, employers have the discretion to choose the recording system.
• In principle, employers are obliged to monitor the time recording. However, employers can delegate this obligation to employees.
• An exception to the obligation to record working hours exists for executive employees.
• Works Councils have a of co-determination right with regard to the form and structure of the time recording in accordance with Section 87 No. 7 of the Works Constitution Act (BetrVG).
• A breach of the obligations laid down by the BAG are not sanctioned.

Nevertheless, it should be noted that, in addition to the obligation to record the networking time according to the court decision (see above), the provision of Section 16 (2) ArbZG continues to apply, according to which employers are obliged record the overtime of their employees. In contrast to a breach of the obligation to record the networking time, a breach of Section 16 (2) ArbZG is sanctionable and can be fined by the responsible authorities.

Conclusion

In the absence of any progress in the legislative process, it must be assumed that the current legal situation will not change until at least Easter 2024. However, even without a change to the Working Time Act and the planned introduction of obligatory electronic time recording, employers are already obliged to (non-electronically) record the working time of their employees.