Recording of working time: key points and exceptions

Confidential working time must remain possible, but following the ruling of the Federal Labor Court (BAG) on September 13, 2022, companies operating in Germany are obliged to systematically record the working time of their employees. Whereas previously only overtime and Sunday work had to be documented, companies must now record all working time, from the length of the working day to breaks, overtime, vacation and absences.

Amendments to the Working Hours Act (ArbZG)

In 2023, the following legislative changes were implemented:

The start, end and duration of employees’ daily working hours are recorded electronically on the respective working day and stored for at least two years. The obligation to record on the same day can only be broken by collective agreement, works agreement or service agreement. In this case, the recording may also be made on another day, but no later than the end of the seventh calendar day after the day on which the work was performed.

Pursuant to Section 16 (2) ArbZG-E, employees can document working time themselves. Ultimately, however, the employer is responsible for the proper recording of working time. He must “ensure by appropriate measures” that he is “aware of violations of statutory provisions on the duration and location of working hours and rest periods.” The obligation generally applies from the first day of the quarter following its entry into force, and violations are punishable by fines of up to 30,000 euros under Section 20 of the ArbZG.

Upon request, the employer must provide its employees with information about the recorded working time and, if necessary, provide them with a copy of the records. The records must be kept for at least two years.

Non-electronic time recording will be allowed for up to one year after the law comes into force, so that companies can adapt accordingly. The transition period depends on the size of the company: two years for companies with fewer than 250 employees and five years for companies with fewer than 50 employees.

In addition to the time recording devices already in use, other forms of electronic time recording via apps or Excel spreadsheets would also be possible, according to the draft.

Regulation for small businesses and collective agreements

Business associations and trade unions can agree on exceptions or clauses that allow regulation at the company level by management and the works council.

Non-electronic time recording
Documentation not on the same day, but no later than one week after work performance
Complete waiver of recording

Exceptions are provided for employees whose working time is not measured or predetermined due to the specific characteristics of their activity, or can be determined by the employees themselves, as in the case of researchers. In addition, companies with fewer than ten employees, foreign employers without a permanent establishment in Germany who post up to ten employees to Germany, and households that employ domestic workers can waive the electronic form altogether.

Registration and protection of personal data

With the introduction of digital working time recording, the issue of employee data protection is gaining further importance in companies. Whenever working time is recorded, the employer collects personal data of its employees and must therefore comply with the data protection provisions of the General Data Protection Regulation (GDPR). In principle, the employer can and must record working time and process the corresponding data. This is because the recording of working time is necessary for the performance of the employment relationship and the employer is obliged to maintain a system with which the actual working time worked by each employee can be measured.

The decisive factor for the compatibility of data protection and time recording is compliance with the principles of Article 5 of the GDPR. These state, among other things, that data may only be collected for clear and legitimate purposes and may not be processed for other purposes. In addition, only data that is necessary for the intended purpose may be collected and processed. All personal data must be deleted after the end of the purpose and after the statutory retention periods have expired. If in doubt regarding the recording of working hours and data protection, it is always advisable to contact the company data protection officer or the works council or personnel council. The latter should be able to provide information on who and where has access to the recorded data and whether there is a legal basis for this.

Vorteile für beide Parteien

Digital time tracking offers benefits for both employers and employees.

The most important benefits for companies include:

Simplifying payroll: especially in large companies with several hundred or thousands of employees, digital time tracking can be a great help in payroll. Working hours and overtime no longer have to be calculated individually, but are automatically transferred to a system, providing companies with an overview of absenteeism and workload. In addition, electronic time recording saves employers a lot of administrative work and allows them to work much more efficiently.
Better deployment planning: time recording enables companies to deploy staff more efficiently. Thanks to the minute-by-minute calculation of working time, employers can quickly get an overview of which employees still have capacity for additional tasks and which employees need to be relieved. In addition, historical data on absences such as vacation or sick time can help optimize staff deployment.
Transparency and security: With digital time recording, companies are better protected legally. They can prove compliance with working and rest times to the legislator and thus do not run the risk of violating the Employee Protection Act and labor law.

Contrary to the assumption that it is just a monitoring method, this tool offers several advantages to workers:

Fairness: workers who are busy tend to work overtime. If they are not compensated for this in the form of bonuses or vacation, frustration and demotivation quickly ensue. Time tracking can provide a remedy here. All additional hours worked are credited to the employees’ individual working time accounts and can be “celebrated off” when the opportunity arises. This ensures fairness within the workforce and prevents employees from feeling disadvantaged compared to their colleagues because of their workload.
Transparency: If employees have individual working time accounts, they have an overview of the hours worked at all times. Both overtime and undertime can be viewed and paid in consultation with supervisors.
Facilitation of planning: The transparency that employees gain from time recording is closely related to the simplification of planning their own working time. Vacations and absences can be better calculated in advance.

Time tracking software

A suitable system for recording working time today is software-based. There are several options here: Either stand-alone solutions, with which only working times can be recorded. Or all-in-one solutions that offer other functions in addition to time recording. The latter is the case with Momozeit, developed by Pronto Web GmbH.

The platform enables not only the recording of working hours, but also of project times, absences, vacation/sickness, as well as the creation of evaluations. Momozeit also enables the upload and download of Excel documents, has a DATEV interface and is compatible with all devices. It also offers a support service during operation and commissioning, as well as a short payback period. The website offers a free trial of the software and a look at the platform’s three packages.

Contrary to the goal of protecting companies and their employees, misconceptions about the labor court’s decision are currently circulating on the Internet. One of them is that of the end of trust-based working hours. As the name suggests, the trust-based working time model is based on mutual trust between employer and employee.

While the employer can rely on the performance of its employees, the BAG ruling aims to promote personal responsibility and productivity, so that employees are more motivated when they know that their overtime will be credited. In addition, working hours can still be freely arranged, taking into account rest breaks, rest periods and the maximum daily working time, if both parties so agree. The legal provisions for the protection of employees and the Working Hours Act were already valid before, the only new feature is the legal documentation requirement.