Working time recording resolution of the Federal Labor Court: Questions and answers

Who will have to document their working hours in the future?

Nadine Bos

Editor in business, responsible for "Career and Opportunity".

The fundamental decision of the Federal Labor Court on Tuesday is very far-reaching. In industry and in public authorities, employers already record the working hours of their employees, and there are unlikely to be any major changes in these areas. What is new, however, is that the obligation to record working hours affects all employees, including managerial staff and those professions in which "trust-based working hours" have been common and people work very independently. The judges are based on a fundamental judgment of the European Court of Justice (ECJ), which caused a stir in 2019 but has not yet been implemented in Germany. They even go one step further: In their view, the obligation to record working hours results from the Occupational Safety and Health Act, and that applies in principle to all employees, emphasizes Christian Bitsch from the law firm Bluedex.

Will trust-based working hours be over in the future?

This is one of the central questions that arises after the decision. "At least at first glance, working hours based on trust can no longer exist," says employment lawyer Markulf Behrendt from the law firm Allen & Overy. "However, we certainly see possible solutions that, slightly modified, can still be possible." In Luxembourg, for example, employees only have to confirm in a very general way that they have worked eight hours. Overtime must be justified and approved by the supervisor. The principles of trust-based working hours could possibly also be obtained from an Excel spreadsheet that each employee fills out for herself. But that will only be clarified when the written reasons for the decision are available - and that will take a few more weeks.

How can working hours be recorded?

This can be done using normal access control systems, i.e. ultimately using a modern form of the time clock. This form is common in factories. As a rule, however, working hours are more likely to be recorded digitally, explains the Federal Association of Personnel Managers. This can happen in many ways; the task can also be delegated to the respective employee. A handwritten note is just as sufficient as an Excel spreadsheet. However, there are now many electronic working time recording systems in which employees use apps to tell their employer how much they have worked. "Companies must now talk to the works council and their employees and clarify uncertainties," advises Behrendt. "Employees need to know what counts as working time and what doesn't."

What applies in the home office?

Since the corona pandemic, employees in many industries have been working more flexibly than ever before, which makes it even more difficult to distinguish between work and free time. The provisions of the Occupational Safety and Health Act also apply when working from home, emphasizes Bitsch, an expert on labor law. Whichever time recording system is used, it will have to record the times in the home office. "The decision is a damper for the home office," fears Jörg Scholten from the consulting firm Kienbaum. “Now we risk falling back to pre-pandemic times when employers call their employees back to the office just because there is better control over working hours. Nobody can actually want that.”

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