Recording working hours for employees: This is what the Ministry of Labor is planning

Berlin The federal government wants to oblige employees in Germany to electronically record their working hours every day. However, the collective bargaining and company parties should be able to agree on exceptions. This provides for a draft law by Federal Labor Minister Hubertus Heil (SPD), which is available to the Handelsblatt. Trust-based working hours should also continue to be possible. First, the “Süddeutsche Zeitung” reported on the draft.

The bill was eagerly awaited after the Federal Labor Court decided in September last year that employees’ entire working hours must be recorded. So far, this only applies to overtime. However, the Erfurt judges left open the question of how the recording must be made.

According to the draft law, Heil wants to oblige employers to “electronically record the beginning, end and duration of the daily working hours of the employees” on the respective working day. The Ministry assumes that the costs for the technical introduction of a recording are around 450 euros per company. The employees could document their working hours themselves, but this could also be done by “a third party”, for example a supervisor.

Ultimately, however, the employer is responsible for ensuring that working hours are properly recorded. In addition, employees should be given the right to have their employer inform them of the hours recorded and give them copies of the information. The regulations should also apply in parallel to civil servants.

According to the draft law, employers’ associations and trade unions can agree exceptions to the daily recording deadline or clauses that open up regulation at company level by management and works councils via collective agreements. You can choose to have working time recorded in “non-electronic form”, i.e. on paper; that the hours are not recorded on the same day, but only later, but no later than a week after the work is done.

Read more about working time tracking

And you can choose not to record it at all. This applies to employees for whom the working time “is not measured or fixed in advance” or “can be set by the employees themselves” due to special characteristics of the job. This could apply to researchers, for example. Even small businesses with up to ten employees can do without electronic recording.

The plans are likely to cause disputes within the traffic light coalition. The labor market and social policy spokesman for the FDP parliamentary group, Pascal Kober, spoke of “personal ideas of the Minister of Labor” that his party would examine critically. “I can’t imagine them becoming law like this,” Kober told Handelsblatt.

The draft law ends a long phase of legal uncertainty. In May 2019, the European Court of Justice (ECJ) had already ruled before the Federal Labor Court in a Spanish case that the EU member states must oblige employers to set up an objective, reliable and accessible system with which the daily working hours worked by each employee are measured can be.

Hubertus Heil

The law, which now first has to go through the cabinet and then through the parliamentary procedure, should apply indefinitely according to the will of the Minister of Labor.

(Photo: IMAGO/Jürgen Heinrich)

At that time, however, the grand coalition could not agree on a legislative implementation of the judgment. After the change of government in connection with the increase in the minimum wage, Labor Minister Heil then tried to introduce an obligation to record working hours electronically in sectors particularly prone to undeclared work, but failed due to resistance from coalition partner FDP.

Timekeeping as a contribution to health promotion

The Federal Labor Court then put the issue back on the agenda with its decision. It derived the obligation to record all working hours not from the Working Time Act, but from the Occupational Health and Safety Act. The judges argued that a health-endangering overload of employees can only be counteracted if the working hours are fully recorded.

This is also what the draft law now says: Working hours have become more and more flexible in the course of globalization and digitization in recent years. “Especially in a flexible working world, the recording of the hours worked is of particular importance,” write Heil’s officials.

The recording makes it easier for the employer to control the statutory maximum working hours and minimum rest periods. “It also makes a contribution to ensuring the health and safety of employees in a flexible working environment.”

The highest German labor judges not only obliged employers to provide a recording system, but also to make use of it. Since then, there has been uncertainty in companies as to how the recording is to be carried out.

Recording of working hours even with trust working hours?

There could still be debates about trust-based working hours. With this widespread model, the employer does not specify the start and end of working hours, employees have to write down their hours themselves.

Trust-based working hours should continue to be possible, but the employer must also ensure that employees comply with the statutory maximum duration and rest periods. Due to trust-based working hours, the recording of working hours is “not superfluous”.

The law, which now first has to go through the cabinet and then through the parliamentary procedure, should apply indefinitely according to the will of Heils. An evaluation is not planned.

More: Part-time is not a trend towards a better work-life balance

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