Update Employment Law April 2023

BMAS draft bill on the obligation to record working time


On September 13, 2022 (1 ABR 22/21), the German Federal Labor Court (Bundesarbeitsgericht, BAG) ruled that, if Section 3 (2) of the German Occupational Health and Safety Act (Arbeitsschutzgesetz, ArbSchG) is interpreted in conformity with EU law, the employer is obligated to introduce and use a system that records all of the employees' working hours (see BAG: Employers are legally obligated to introduce an (electronic) working time recording system (update) (heuking.de)). In this regard, the BAG refers to the ruling of the European Court of Justice (ECJ) of May 14, 2019 (Case 55/18 CCOO), which concerns the interpretation of Directive 2003/88/EC (Working Time Directive) as well as Directive 89/391/EEC (Framework Directive on Occupational Health and Safety) (cf. ECJ: Member States must oblige employers to systematically record working time (heuking.de).

Since then, the "whether" of recording working time has been beyond question; only with regard to the "how" are there uncertainties that need to be resolved by the legislator. The German Federal Ministry of Labor and Social Affairs (BMAS) has now published the overdue draft bill for the revision of the Working Time Act (ArbZG-E) on April 18, 2023. Following the consultation of associations and the coordination between the federal ministries , a draft bill will be prepared by the German government. It is to be expected that numerous requests for amendments will be submitted to the BMAS. According to Art. 4 of the draft bill, the law is to enter into force on the first day of the quarter following promulgation (which would be July 1, 2023 at the earliest).

In this article, we give an overview of the main content and a first evaluation of the draft bill.

Recording of start, end and duration of daily working time

The core of the draft bill is the new Section 16 (2) ArbZG-E. According to this, the employer is obliged to electronically record the beginning, end and duration of the employee's daily working time on the day of work performance. Breaks are not mentioned in the draft bill. However, since they must actually be granted (not just deducted as a lump sum), it makes sense and is appropriate to record break times.

In principle, all employees are covered with the following exceptions:

  • Senior executives within the meaning of Section 5 (3) of the Works Council Constitution Act (BetrVG) are excluded from the scope of application of the Working Hours Act pursuant to Section 18 (1) ArbZG. In this respect, however, it is doubtful and has always been disputed whether this is permissible under European law. The Working Time Directive allows "derogations" for senior executives, but probably not a "repeal" of its regulations. In addition, the BAG has based the obligation to record working time on the ArbSchG, which precisely does not provide for an exception for senior executives.
  • It shall be possible to stipulate by collective agreement, or on the basis of a collective agreement by works agreement, that the obligation to keep records does not apply to employees "for whom the total working time is not measured or is not fixed in advance or can be fixed by the employees themselves because of the special characteristics of the activity performed." According to the explanatory memorandum tot he draft bill, these may be senior executives, prominent experts or scientists who are not required to be present at the workplace at fixed times but can decide for themselves on the scope and scheduling of their working hours. Collective bargaining parties are to determine here which employees these conditions apply to. This means that where there is no collective agreement, no deviation is possible.

The recording can be carried out by the employee himself or by a third party, such as the supervisor (Section 16 (3) ArbZG-E). However, even if the recording obligation is delegated, the employer remains responsible for the proper implementation of the recording obligation under occupational health and safety law. If, for example, an employee ignores the instruction to record daily working hours, this could be grounds for a warning as a breach of contract.

Electronic form of working time recording

The draft bill prescribes electronic time recording without further defining what this is. The explanatory memorandum mentions time recording devices (time clocks), but also apps on mobile devices and conventional spreadsheet programs. Particularly in the case of the latter, it is doubtful whether this would satisfy the ECJ's requirements for an "objective, reliable and accessible system for recording working time"; after all, any Excel spreadsheet can be easily manipulated by simply saving it over.

The recording of working time in non-electronic form shall only be permissible

  1. during a transitional period of one to five years, staggered according to the size of the company (Section 16 (8) sentences 1 and 2 ArbZG-E);
  2. if the employer does not employ more than 10 employees (§ 16 para. 8 sentence 3 ArbZG-E); or
  3. if this is permitted by collective agreement or on the basis of a collective agreement by works agreement (Section 16 (7) no. 1 ArbZG-E).

Time of the recording working time

The hours worked must be recorded on the day of the work performance itself. This is consistent if one takes into account the purpose of the working time record specified by the ECJ, namely to ensure compliance with the minimum daily rest periods. In this case, the beginning and end of the working time must be recorded every day so that it can be checked whether the start of work on the following day is permissible at all or whether there is a violation of the minimum daily rest period.

It should be possible to deviate from this by means of a collective agreement and the recording should be permissible until the end of the seventh calendar day following the day of the work performance at the latest. In the light of ECJ case law, this exception is questionable under European law.

Trust-based working time models

In the case of trust-based working time models (Vertrauensarbeitszeit), the employer does not specify the start and end of the contractually agreed working time. He "trusts" that the employee will fulfill the contractual work obligation without checking this. However, this does not change the fact that - already today - the statutory provisions on the duration and location of working hours and rest periods must be observed.  Working time records and "trust-based working time" are therefore not mutually exclusive. On the contrary, even in the case of "trust-based working time", every employer must organize his business in such a way that he can ensure compliance with the applicable laws, collective agreements and works agreements (cf. BAG, May 6, 2003, 1 ABR 13/02).

Section 16 (4) ArbZG-E provides that in the case of "trust-based working time", the employer must ensure that it becomes aware of any violations of the provisions of the Working Time Act, in particular relating to maximum working hours and rest periods. This can be done, for example, by means of automatic notification of an electronic working time recording system.

Copy entitlement

According to the case law of the ECJ, the working time recording system must be accessible to employees. Therefore, Section 16 (5) ArbZG-E provides that the employer must inform the employees about the recorded working time in an appropriate manner upon request. Upon request, he must hand over a printout of the recorded working time or send an electronic copy. This should make it easier for employees in the future to overcome the high hurdles set by case law for the burden of proof in a lawsuit for compensation for alleged overtime.

Retention obligation

Employers must keep the time sheets in German for at least two years in order to be able to present them, for example, for supervisory audits, in labor court proceedings or at the request of the works council.


In the future, violations of the obligation to keep records will be subject to fines (Sec. 22 (1) No. 9 and No. 10 ArbZG-E). Anyone who fails to keep working time records or does not keep them correctly, completely, in the prescribed manner or in good time, or does not keep them for the prescribed period, or does not keep them for at least two years, will be in breach of the regulations. Violations of the employer's duty to inform employees about recorded working time will also be punishable as an administrative offense. Violations may result in fines of up to EUR 30,000.00.

At the very least, there is no threat of a criminal offense in the case of deliberate commission or persistently repeated violations, because Section 23 of the ArbZG has not been supplemented by the newly added administrative offenses.


All in all, the draft bill is a disappointment. The pressing practical questions of how to deal with working time in the wake of globalization and digitization in an increasingly flexible world of work remain unanswered. In particular, it remains unclear what actually constitutes working time - even the briefest check of e-mails after work or on vacation? Employees are degraded to immature citizens who are not allowed to continue working even if they want to. The Working Time Act no longer has much in common with workplace reality. There is much need for discussion.

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