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ECJ requires complete time recording

The European Court of Justice (ECJ) in Luxembourg ruled today, Tuesday, May 14, 2019, that EU member states must oblige their employers to keep full time records in future. As the weekly newspaper “Die Zeit” reports, it is not enough just to record overtime. According to the ECJ, today’s ruling strengthens the rights of employees. Accordingly, a time recording tool would make it easier to prove that rights have been violated. Under German law, the Working Hours Act currently only stipulates that overtime in excess of the working day must be recorded. According to the ECJ, it is now up to the EU member states to oblige employers to set up an “objective, reliable and accessible system” for recording working time. REINER SCT offers a simple and efficient digital time recording solution. With the timeCard time recording software, companies have an overview of all their employees’ working hours and absences at all times, can automatically transfer the data to their payroll accounting and prevent errors and manipulation in Excel files. Another plus: timeCard can be used for all working time models. This saves companies a lot of time and therefore costs.

Labor law basics of working time recording

In principle, the employer is not obliged to record employees’ working times, regardless of the method used. However, in accordance with Section 16 (2) ArbZG, the employer is obliged to record the overtime worked by employees. In practice, time recording systems are therefore often introduced to fulfill this obligation. However, it is also permissible to “pass on” this obligation to employees by having them document their working hours themselves. The employer’s time recording system must also make it possible to monitor an employee’s average working hours. The Working Hours Act stipulates a maximum working time of 48 hours per week on average over a six-month period. Such regulations must always be verifiable. The employer is obliged to record the working hours of employees in excess of the working day working hours in Section 3 sentence 1 and to keep a list of employees who have consented to an extension of working hours in accordance with Section 7 (7). The evidence must be kept for at least two years. On the one hand, monitoring working time is important for monitoring employees. After all, only the time actually worked should be paid. On the other hand, it is also an obligation under occupational health and safety law to record and monitor working time correctly. Violations of the applicable working time regulations and data protection laws can be expensive for the employer. On May 14, 2019, the European Court of Justice ruled that employers are obliged to systematically record the daily working hours of their employees.

Works council: co-determination in time recording

If there is a works council in the company, a works agreement should be concluded with it and everything necessary should be regulated in it. The works council has a strong right of co-determination when it comes to working hours, but also has protection and monitoring duties to fulfill. The exact regulations are set out in the following paragraphs: According to Section 75 (1) and (2) of the BetrVG, there is an obligation to protect the personal rights of employees. This means that care must be taken to ensure that unauthorized data is not collected and that the privacy of employees remains protected. According to Section 16 (2) ArbZG, you are also obliged to submit the recordings to the works council and handle the data sensitively. Employees should be assured that the company handles the collected data sensitively. This includes ensuring that personal data can only be viewed by employees who are authorized to do so, that it is only stored for as long as necessary and that it is only recorded and used for time recording purposes. According to Section 80 (1) No. 1 BetrVG, the employee representatives must ensure that the applicable law is complied with (including the legality of data collection, processing and use of personal data, implementation of technical and organizational data protection measures, etc.) and they have a right of co-determination under Section 87 (1) No. 6 BetrVG and have a say in the introduction of technical access controls, for example.

EU General Data Protection Regulation

The new EU General Data Protection Regulation (GDPR) has been in force since May 25, 2018. Every company that collects and stores data must adapt its entire data management system accordingly. This is less about the content of data protection requirements and more about increasing awareness of how data is handled. The focus is on personal data. What is personal data in the employment relationship? The GDPR defines personal data as any information relating to an identified or identifiable natural person. Employers are not required to obtain separate consent from their employees for the data they need to establish the employment relationship in the first place and to fulfill their legal obligations. The personal data that a company may collect, use and store includes the data that companies need to fulfill their obligations as an employer towards employees. For example, account numbers, health insurance, marital status, etc. are required for the recruitment of an employee and the payment of wages and ancillary wage costs. The recorded working hours are particularly important for payroll accounting. Therefore, although working hours also belong to the category of personal data, the recording of working hours is also one of the employer’s obligations. The two-page overview of the BayLDA can be downloaded as a PDF. Data protection when recording working hours: what employers need to consider. Data is collected during working time recording and access control. Employers must therefore also observe the regulations of the Federal Data Protection Act (BDSG) and the state data protection laws as well as the telecommunications laws. Section 32 BDSG is particularly important. According to this, employers may only collect, process and use employee data if this is necessary for the recruitment decision, implementation or termination of the employment relationship. In conjunction with the principle of data minimization, this means that only absolutely necessary data may be collected and stored. Data that is no longer required must be deleted immediately.

The minimum wage is here!

The law regulating a general minimum wage (MiLoG) has been in force since January 1, 2022. According to this law, employers must pay their employees at least 9.82 euros per hour. Violations of the Minimum Wage Act are punishable by a fine of up to 500,000 euros! In which sectors must working hours be recorded? The documentation obligation generally only applies to marginally employed persons (exception: mini-jobbers in the private sector) and the economic sectors listed in the Act to Combat Illegal Employment, in which there is a particular risk of abuse. These include: the construction industry, restaurants and hostels forwarding, transport and logistics companies in the forestry industry building cleaning, trade fair construction, meat industry. Newspaper deliverers and employees of parcel delivery services must also regularly record their working hours.

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