According to a ruling by the European Court of Justice (ECJ), EU member states must require companies to implement an objective, reliable, and accessible system for recording daily working hours. What this ruling means for German employers, however, remains unclear. What is certain is that it is causing uncertainty among companies and startups. We interviewed an expert on working time recording.
There is currently no legal requirement for general recording of working hours in Germany. The Working Hours Act merely requires all companies to record their employees' overtime—that is, everything that exceeds the eight-hour working day. In addition, special rules apply to certain industries: For example, the entire working time of employees in road transport must be recorded.
There are also further regulations: The Minimum Wage Act requires the documentation of all working hours for certain employees, such as marginally employed workers. This is intended to make it possible to monitor compliance with the provisions of the Minimum Wage Act. Mini-jobbers in private households are exempt from this. The Minimum Wage Act also requires the recording of all working hours in certain sectors considered particularly vulnerable to undeclared work. According to the Act to Combat Undeclared Work, these include the construction industry, the catering industry, transport and logistics, and building cleaning. Recording obligations also exist within the scope of the Posted Workers Act.
The ECJ ruling on working time recording
Added to all this is the ECJ ruling from May 2019. In a Spanish case, the Luxembourg judges ruled that the implementation of the EU Working Time Directive requires companies to establish a system to record their employees' daily working hours. However, according to the Luxembourg judges, there is considerable scope for this. This means that any upcoming new regulation could take into account the specific characteristics of the respective field of activity as well as specific characteristics of specific companies, such as their size.
What exactly this means for the legal situation in Germany is unclear, however. Süddeutsche Zeitung In January, a legal opinion was prepared for the Ministry of Labor, which considers changes to German working time law necessary and presents a corresponding drafting proposal. What exactly will be changed in the Working Time Act remains unclear, however—partly because there is a second opinion commissioned by the Ministry of Economic Affairs that has not yet been published. The ministry itself has so far only stated that coordination within the coalition has not yet been completed.
“What needs to be changed legally to implement the ECJ ruling is controversial in detail,”
explained Dr. Frauke Kamp, consultant for labor and social security law at the Chamber of Industry and Commerce for Munich and Upper Bavaria. This makes it difficult for employers to prepare for the upcoming new regulations on working time recording. In addition, the parties in the governing coalition want to combine these changes with other requests and projects, such as a right to work from home. But this, too, is still completely open, as the government members must first reach an agreement.
What startups need to know
"In principle, the statutory maximum working hours or the expected record-keeping obligations under the European Working Time Directive apply to all employees. As an employer, the business owner must ensure compliance with the working time regulations and—after appropriate legislative implementation—the recording of working hours for his employees. However, he himself does not need to observe maximum working hours or record-keeping obligations in his own work. To the extent that external consultants or partners actually work on the basis of a service or work contract, they are not employees and therefore also do not fall within the scope of the European Working Time Directive."
explains Dr. Kamp. If a startup has grown to the point where it needs further employs workers, the rules do apply. However, since the exact details of the expected new legal regulations on recording working hours are still unclear, Dr. Kamp advises patience:
“The ECJ expressly emphasized in its decision that differentiated regulations are possible depending on the size of the company.”
What the judgment does not say
Employees are already required to have an uninterrupted rest period of 11 hours per day. This also applies, in principle, to evening emails or phone calls with international partners outside of normal working hours. The Chamber of Industry and Commerce expert clarifies that the ECJ ruling only applies to the record-keeping requirement; rest periods and maximum working hours are unaffected. Nevertheless, changes could occur here if the legislature addresses this as part of the new regulations:
"The ECJ ruling and the necessary implementation into German law following the ruling concern exclusively record-keeping obligations. The prescribed maximum working hours and rest periods are not affected. Whether and to what extent a new regulation in the Working Hours Act might waive the record-keeping obligation for certain groups of employees for practical reasons or provide a de minimis threshold for very short activities remains to be seen."
Anyone who wants to know more about the topic of time recording or other labor law topics can visit the website of the Chamber of Commerce and Industry of Munich and Upper Bavaria inform. This also Trade Inspectorate as the competent authority provides information.
