BAG: Employers are legally obliged to introduce an (electronic) working time recording system (Update)

In its decision of September 13, 2022 (1 ABR 22/21), the Federal Labor Court (Bundesarbeitsgericht, BAG) takes the position that employers in Germany are already legally obligated under the current legal situation to introduce a system with which the working time worked by employees can be recorded. After the press release had already attracted a great deal of attention, the eagerly awaited reasons for the decision are now available. What does this mean for employers?

Key statements of the BAG

The BAG derives the legal obligation of employers to introduce a working time recording system not from working time regulations, but from Section 3 (2) No. 1 ArbSchG. According to this framework regulation, employers would have to ensure a "suitable organization" and provide the "necessary means" to guarantee the occupational safety and health protection of their employees. In the opinion of the BAG, this regulation, if understood in conformity with Union law, also includes the fundamental obligation of employers to introduce a system for recording the daily working time of their employees. The start and end of work, i.e. the duration of working time including any overtime worked, would have to be recorded. As long as the national legislator does not issue any specific regulations, there is certainly room for maneuver for the parties to the company with regard to the exact design of this working time recording system. With reference to the so-called "time clock" decision of the ECJ, the BAG emphasizes that the recording of working time does not have to be carried out electronically without exception. Depending on the activity and the company, records in paper form are also sufficient. Likewise, it is not excluded under EU law to delegate the recording of working hours to the employees.

Practical advice

It has now been definitively clarified that employers are already fundamentally obligated under current law to maintain (any) suitable working time recording system and to actually apply it. The clarification that, depending on the individual case, an analogous working time recording system may also be sufficient and that delegation to employees is not insufficient per se is to be welcomed. Both of these points have recently been widely contradicted in the literature on labor law. In the absence of a sufficient normative basis, violations are still not subject to direct fines under the current status quo. This changes as soon as the occupational health and safety authority issues a corresponding order to set up a working time recording system, which is not complied with. It is noteworthy that the BAG only grants the works council a right of initiative for the introduction of a (not necessarily electronically managed) working time recording system from the point of view of co-determination in company regulations on health protection pursuant to Section 87 (1) No. 7 BetrVG. It would at least be worth considering whether a right of co-determination under Section 87 (1) No. 1 BetrVG could also apply, namely if the employer issues binding instructions to its employees regarding the manner in which working time is recorded.