/// BREAKING NEWS /// The labor law earthquake: BAG decides in favor of DUTY TO WORK TIME COMPASSION

image source: unsplash.com

image source: unsplash.com

(Federal Labor Court, decision of September 13, 2022 – 1 ABR 22/21)

According to a decision of the Federal Labor Court issued on September 13, 2022, the
employer is already required under Section 3 (2) No. 1 ArbSchG to introduce a system to record the working time worked by employees.
According to a decision of the ECJ on the obligation to record working time from 2019 (We had reported: Time card reloaded? – The ECJ’s “time recording ruling” – consequences for employers), a corresponding draft law had been
had been expected. The BAG now anticipates this and, contrary to the previous prevailing opinion, already derives the obligation from the German Occupational Health and Safety Act.
Accordingly, not only overtime, Sunday work and working hours of certain groups of people, such as mini-jobbers, but the entire working time must be documented.

What the documentation must look like, when it must be created, and how long it must be
it must be kept, is currently left open in detail. Here, first of all, the detailed
court’s decision and, of course, the expected short-term reaction of the legislature will provide further guidance.
The decision will have far-reaching consequences – especially for trust-based working time, home office, etc. – and in particular for the group of persons to whom the
obligation is to apply. This is because the personal scope of the Occupational Health and Safety Act goes much further than that of the Working Hours Act.
As an employer, you must now – if you have not already done so – deal with how to implement the obligation standardized by the ECJ to introduce an objective, reliable and accessible system.

The BAG has thus decided that due to this – now already considered to exist
legal obligation, the works council is entitled to request the introduction of an
(electronic) working time recording system in the company with the help of the conciliation body. A corresponding right of co-determination pursuant to Section 87 of the Works Council Constitution Act (BetrVG) only exists if and to the extent that the company matter is not already regulated by law.

Do you already have a time recording system in your company?

Do you have any questions?

We will be happy to advise you directly on these topics. Please contact us for further information:


Susanne Schröder

Labour Law

Geschäftsführerin/Managing Director
Rechtsanwältin/Fachanwältin für Arbeitsrecht
Lawyer/Attorney specialized in labour law
Lehrbeauftragte der Hochschule der Bayerischen Wirtschaft (HDBW) für Wirtschaftsrecht

Sandra Weitl-Ott LL.M.Eur.

Labour Law

Rechtsanwältin/Fachanwältin für Arbeitsrecht
Lawyer/Attorney specialized in labour law