Working time recording: what employers must do
The time clock is making a comeback: back in 2019, the European Court of Justice ruled in no uncertain terms that the working time of all employees must be recorded (C-55/18). In September 2022, the Bundesarbeitsgericht (BAG, Germany's Federal Labour Court) enshrined this for Germany too, in a ruling that attracted a great deal of attention (case number: 1 ABR 22/21). But what exactly does this ruling mean for employers? And when does the rule have to be implemented? We answer the most important questions.
What did the Federal Labour Court actually decide?
In Germany, there is an obligation to record working time (1ABR 22/21). The explosive part: in the BAG's view, the obligation already existed before the ruling. Inken Gallner, President of the Federal Labour Court, bases employers' obligation to systematically record their employees' working hours on the interpretation of the German Arbeitsschutzgesetz (Occupational Safety and Health Act) in light of the "time clock" ruling of the European Court of Justice (CJEU).
In May 2019, the European Court of Justice interpreted the European Working Time Directive to mean that EU member states must ensure objective and reliable recording of working time. The BAG refers to this CJEU ruling in its reasoning, published in December 2022. Previously, the German Arbeitszeitgesetz (Working Hours Act) did not lay down a general recording obligation, only one for overtime.
To justify why this should suddenly be different, the BAG resorts to a clever legal device. It interprets Section 3(2) No. 1 of the Arbeitsschutzgesetz "in conformity with EU law". Strictly speaking, the provision only states explicitly that employers must ensure suitable organisation and provide the necessary resources to safeguard the safety and health of employees at work. According to the new case law, this is now supposed to also mean that working hours must be recorded.
When does the obligation to record working time begin?
According to the BAG, it has already begun, for all employers and regardless of their size. "If you interpret the German Occupational Safety and Health Act in line with the requirements of the European Court of Justice, there is already an obligation to record working time," explains Federal Labour Court President Gallner. Under Section 3, she says, employers are already obliged today "to introduce a system with which the working time performed by employees can be recorded". Under the German Working Hours Act, only overtime and Sunday work have had to be documented so far, not total working time. However, the Federal Labour Court refers not to the Working Hours Act but to the Occupational Safety and Health Act. This at least has one advantage for employers: because this law only provides for fines in the event of violations of official orders, fines are only to be expected once such orders have been issued.
What do employers have to do now?
Since the publication of the BAG ruling at the latest, employers have been obliged to record their employees' working time. According to the BAG, they can also delegate this obligation to their employees. In any case, they remain responsible for ensuring that working time is actually and correctly recorded, for example through regular spot checks. According to the BAG, executive employees are exempt from the recording obligation, although defining this group is often difficult in practice. Whether time recording must be digital or may be done on paper is disputed. In any case, companies must set up practical solutions for recording working time.
In what form must working time be recorded?
When it comes to the "how", employers still have room for manoeuvre for the time being. The BAG confirms that recording can be delegated to employees and that the employer may determine the manner of recording. So far, the BAG does not require electronic recording. The system merely has to guarantee data protection, security and the health protection of employees. However, the Federal Ministry of Labour had already announced statutory regulation at the time (see below for the current status). The coalition agreement states: "In dialogue with the social partners, we will examine what need for adjustment we see in light of the case law of the European Court of Justice on working time law." The ministry also responded immediately to the BAG's reasoning with its own statement, stating unequivocally: "According to the BAG's decision, all working time must be recorded."
What about trust-based working time and working from home?
Trust-based working time had already been called into question after the CJEU ruling of 2019. The employers' association Gesamtmetall declared it "practically dead". Then, in October 2022, the Landesarbeitsgericht München (Munich Regional Labour Court) ruled that employers must have an overview of the hours worked even under trust-based working time arrangements. The works council, it said, is entitled to request such information (Ref. 29 BV 61/21). Experts generally expect serious effects on mobile working time models and working from home. Hours must now be recorded there as well. The new working time models in particular practically cry out for new, digital forms of time tracking.
Is this development an advantage or a disadvantage for employees?
The courts are certainly seeking to protect employees' positions. With its 2019 ruling, the CJEU expressly wanted to protect employees from impermissibly long working hours. For BAG President Inken Gallner, too, "time recording [is] also protection against exploitation by others and self-exploitation." On the other hand, the rule reduces flexibility, and recording creates additional effort.
And where are the problems for employers?
Employers fear that the recording obligation could reveal breaches of the maximum working time set out in the Working Hours Act. Under Section 3 of the Arbeitszeitgesetz, working time on a working day may not exceed eight hours. It can be extended to up to ten hours if, on average over six months or 24 weeks, eight hours per working day are not exceeded. This is why industry associations such as Dehoga are campaigning for an amendment that moves from daily to weekly maximum working hours. This would give companies and employees more flexibility and is permitted under the EU Working Time Directive.
Is the ruling equally relevant for all sectors?
No. Low-wage sectors such as hospitality or courier services are only affected to a limited extent, as the obligation to record working time under the Mindestlohngesetz (Minimum Wage Act) already applies to most of their employees. For employees with higher incomes, however, the BAG ruling is directly relevant.
Status of the reform in September 2026
A law that explicitly regulates working time recording in the Working Hours Act has not yet been passed. According to the IHK Rhein-Neckar, a draft bill from the Federal Ministry of Labour is available. It provides for the start, end and duration of working time to be recorded, as a rule, electronically and on the day the work is performed. Parties to collective agreements are also to be able to agree on a weekly rather than daily view of maximum working time. Longer transition periods are planned for smaller companies, and micro-enterprises are to be allowed to continue recording non-electronically. Until new legislation is in place, the obligation arising from the BAG ruling applies.