BAG decision on recording working time: effects of recording time

For many people, the term “time tracking” sounds scary. Employees fear excessive control and employers fear even more bureaucracy. Since the meaning of time recording is often not understood, misunderstandings arise. Many people don’t know the benefits of time tracking.
Without time recording, neither employees nor employers know whether contracts and legally required working hours are being respected or whether overtime or fewer hours are being worked.

It dropped on May 14, 2019European Court of Justice(ECJ) issued a ruling justifying the need for detailed recording of working time. In Germany the legislator remained inactive. However, the FOPH assumed that a corresponding time recording obligation already existed and with its decision gained the upper hand over the legislator. This means that the employer is already obliged to record all working hours. There is no transition period and it is not enough, just to record overtime.

Introduction of electronic time recording: the BAG ruling and what does it entail?

First of all, it must be explained what the BAG ruling of 13 September 2022 provides: «According to Article 3 paragraph 2 No. 1 ArbSchG, the employer is obliged to introduce a system with which the hours worked by employees can be recorded. Due to this legal obligation, the works council cannot force the introduction of a system of (electronic) recording of working time in the company with the help of the conciliation committee.» (Source: as of September 27, 2022).

In short: In Germany all employers are obliged to record the working hours of their employees. The concrete framework conditions for how and in what form data should be collected have not yet been determined, but it is only a matter of time. Therefore, all employers and employees should already be aware of the upcoming changes in the working environment and human resource management inform.

Which times need to be recorded and in what form?

The beginning, end and extra time must be recorded. The form of registration was not specified.

There are different types of time recording. Management of timesheets is a simple form of time recording, but is only suitable for small businesses with up to 10 employees. A Excel table ensures less paper chaos, but data must be transferred manually for payroll. Hardware solutions As clock OR Stamp systems offer a modern and convenient time recording process. But to do this it is absolutely necessary to be on site, since the terminals are permanently installed at the workplace. This offers independence from time and place mobile/web-based solutions. A small problem: the company must make technical devices such as PCs or mobile phones available to employees. There are also hybrid solutions: a combination of a stamp system and a mobile solution. These are preferably used in companies that, for example, have production spaces and home offices.

Which employees need time recording?

Employees are obliged to do so in the sense of § 5 paragraph 1 The law constituting the works is affected. There is no precise statement for recording the time of senior employees.

When does the obligation come into force?

The obligation to record time or to establish a time recording system applies immediately and therefore without a deadline for implementation.

Is a working time based on trust still possible?

The BAG specifies that it cannot be ruled out that the recording of relevant times as such is delegated to employees. However, employers have a duty to check and must carry out random checks and intervene if necessary.

Does the works council have the right to co-determination?

When it comes to introducing working time recording, the works council has no right of initiative. The reason is legal obligation. However, they have the right to have a say in the design of time recording. There are Article 87 paragraph 1 number 6 of the Works Constitution Law (technical equipment) must be taken into account when introducing electronic systems as well as the right of codecision in health protection Article 87 paragraph 1 number 7 of the Works Constitution Law.

What happens if violations occur?

Since the BAG bases the obligation to introduce a time recording system on the provisions of Article 3 of the Occupational Safety and Health Act, a small fine is to be expected. Violations of this rule do not necessarily result in a penalty.

What does this mean in practice?

Companies that already have a time recording system should check whether optimization is necessary.
If there is no system yet, the safest way from a legal point of view is to follow up on the obligation and then implement a system.

Impact of recording working time

The new law leaves ample room for interpretation. First of all: the introduction of electronic time keeping should not be seen as a negative event. We are in times of globalization, where digitalization processes play an important role. The perception of the workplace is no longer what it was before. New work and remote working are already widespread in many companies. Even in some sectors, such as industry or authorities, digital time recording has already been part of everyday life for a long time.

Impact on employers:

• All employers are now obliged to systematically record employees’ working time.
• Employers should look for a suitable time recording system now and start introducing it. Because the delivery times e.g. B. Currently terminals and transponders can be significantly longer.

  Finding and introducing optimal time tracking software initially requires a certain amount of work and time, as well as an investment. This usually pays for itself after a short period of time.

• Digital time recording supports flexible working time models and/or location independence for employees and thus promotes motivation and performance.
• Digital time recording is more convenient than manual entry: no more Excel spreadsheets, no more documents and mountains of files.
• Digital time recording saves a lot of time for HR employees. Time that can be used for other important projects.
• Electronic entry reduces errors that can often occur with manual entry.
• Digital time recording offers a clear and understandable overview of hours worked, as well as activity records that can be specifically assigned to clients or projects.
• Time recording is the basis for payroll accounting.
• Access to updated data at any time.

Impact on employees:

• Recording attendance serves to protect the health and legal protection of employees. For example: protection from workplace accidents when working from home or securely paid overtime.
• Fairness: Anyone who works a lot of overtime can now prove it. If there is a regulation that these are celebrated or paid for, you are clearly at an advantage.
• Flexibility: adapt working hours to private needs.
• Convenient and understandable recording of the time and possibly also of the activity, also for mobile working or home office, thanks to modern, digital solutions.

Interesting verdict:

Office Injury – Advantage of recording time in the office: you can provide evidence of your usual start to work.
But it is also possible to provide proof for commuting accidents, e.g. B. be an advantage at the end of the job.

Time Recording Software: Simple and Accurate!

Time recording software allows for extensive and detailed recording of working hours. This shows not only the start and end of each employee’s work, but also the working time invested in a project. If necessary, deviations can be reacted to in a timely manner and the progress of a project can be communicated to customers in detail.
Stamping in and out can be done via a physical terminal or conveniently online. This is particularly interesting for companies that adopt a flexible, family-friendly HR policy and allow their employees to work from home. An online terminal is also an ideal option for employees who travel frequently for work to fulfill their registration obligations outside of their office.

Conclusion

DigitalTime trackingit has nothing to do with surveillance or control. With attendance recording software it is possible to strengthen employee rights, especially in times of constant availability, new forms of work and more flexible working hours. Making the world of work more flexible does not have to mean that the boundaries between working hours and rest periods disappear. A record-keeping obligation therefore ensures fair working conditions for all employees.

With time recording, both employers and employees are legally secure. Working time is recorded simply and without interruptions. Employees with reliable work schedules and a high number of overtime hours can definitely feel at a disadvantage. Thanks to the time recording it is possible to read the work performance.