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Exceptions to time recording

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The exceptions to time recording relate to rare cases or the fulfillment of certain requirements. Electronic time recording is mandatory for all companies. But there are exceptions to every rule, which we explain here.

The legal situation regarding electronic working time recording

The current status of the Working Hours Act (ArbZG) with regard to the recording of working hours refers to a draft amendment to the ArbZG from 2023. This draft has not yet entered the legislative process, but the laws it contains are likely to become binding in the near future.

This draft law stipulates that all employers are obliged to introduce an electronic time recording system in their company. This system must record the start, end and duration of working hours. Break times and overtime are also included.

The data must be stored in compliance with data protection regulations so that you can present it to the competent authorities at any time upon request. Employees may also request a copy of the data. Of course, only of their working time, not that of all employees.

One major advantage is that you can delegate the recording of working hours directly to your employees. However, you are always responsible for ensuring that they comply with this obligation and that all data is recorded correctly.

These rules apply to all employers. However, there are exceptions to the rule for recording working time.

Then you are exempt from the obligation to record time electronically

First of all, transitional periods apply for the implementation of the new law. During these periods, you are not yet obliged to use electronic time recording. However, you are obliged to implement it within the deadline.

The deadlines are as follows:

  • Companies with fewer than 50 employees have five years to introduce an electronic time recording system.
  • Companies with fewer than 250 employees will be given two years to implement the new law.
  • Companies with more than 250 employees are given one year to introduce a new system and meet the requirements.

Companies with fewer than 10 employees are currently still a special exception. These are exempt from the obligation to use electronic time recording and may continue to record data in analog form.

The requirements for time recording also do not apply to so-called “genuine executive employees”. However, the requirements for this are quite high. Basically, these are managers who are allowed to make far-reaching decisions on behalf of the company and are authorized to dismiss or hire employees on their own authority and to legally bind the employer independently – i.e. to make decisions on behalf of the employer. The Federal Labor Court established these requirements in 2011.

Exceptions to time recording: special cases

There are also certain cases in which the obligation to record time electronically is suspended.

  • Chief physicians are exempt from the time recording obligation.
  • Employees in managerial positions in the public sector and representatives of these positions are exempt from time recording if they are allowed to make decisions on personnel matters independently.
  • Employees in a domestic community who live together with the persons entrusted to them for the independent upbringing, care or nursing.
  • Employees in the liturgical area of churches and religious communities.

Deviating agreements can be made in a collective agreement if it is not possible to measure the entire working time for employees due to their work or if this cannot be determined in advance or if employees are allowed to determine this themselves.

Conclusion on exceptions to time recording

Time recording is mandatory for all companies. This resolution has been in force since 2022, but implementation is still pending as a draft on the obligation of electronic time recording has not yet been adopted. However, this is only a matter of time. Companies should therefore start the changeover early. Whether the previously planned deadlines for implementation will be retained is also open. It is quite possible that these will be shortened when the final decision is made. In this case, it is better to be up to date and have already installed your electronic time recording system in your company.

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