Working time documentation has its own laws and regulations, which are anchored in the Working Hours Act (ArbZG) and the Occupational Health and Safety Act (ArbSchG), among others. We provide you with an overview.
What does the obligation to document working hours mean?
The obligation to record working hours arises from a ruling by the Federal Labor Court (BAG) on September 22, 2022. The decision refers to a previous ruling by the European Court of Justice (ECJ) from 2019.
According to Section 3(2)(1) of the Occupational Health and Safety Act, employers are obliged to introduce a system to record the working hours of their employees. However, this obligation includes not only the installation of such a system, but also the actual use of this system.
The decision of the ECJ applies to all EU member states.
Draft bill on time recording
In April 2023, the German government presented a draft bill that deals with the clear regulations for implementing the court rulings. Among other things, digital time recording is to become mandatory and largely replace methods such as timesheets.
The law was originally due to be amended in 2024, but this was postponed. However, it is advisable to implement the resolutions now, as the law will come into force sooner rather than later and you will have to implement the specified measures by then at the latest.
Which systems are permitted for recording working time?
All working time recording systems that …
- are electronic,
- meet the requirements for tamper protection and
- guarantee data protection
For example, it is still possible to use time clocks as long as they work digitally and meet the criteria for security and data protection.
Manual entry of working hours in Excel tables is also theoretically still permitted.
However, modern time recording systems are programmed in such a way that they take a lot of work off your hands and you basically don’t have to worry about anything. The systems already document and save all data as required.
What needs to be recorded?
Although there are currently no crystal-clear regulations on the content of working time documentation, the maximum working hours and rest periods must be observed at all times.
As an employer, you must therefore document the start, end and duration of the daily working hours of all your employees.
This also includes breaks and rest periods, which are required by law. The documentation of working hours serves as proof that you are complying with the regulations. Should an occupational health and safety authority ever ask for the documentation, you’d better have it “to hand”, because the legislator isn’t joking, and you are also obliged to archive the time sheets for at least two years. According to the retention periods under tax law, this can even be eight years. Of course, data protection must also be observed. You can find out more about the applicable retention periods for timesheets in this article.
What happens if working time is not recorded?
Non-compliance with the regulations has been an administrative offense since 2022. This is punishable by a fine.
The amount of the fine depends on the offense. In general, however, you can assume that the fine will be so high that it “hurts”. A fine can be up to 30,000.00 euros.
But it doesn’t have to stop there. It is quite possible that further penalties will follow, for example because employees sue you.
If a willful disregard of the obligation to document working hours can be proven, there is even a risk of imprisonment.
Documentation obligation
An additional documentation obligation applies to certain sectors in Germany. This applies in particular to the areas specified in the Act to Combat Undeclared Work (SchwarzArbG) and to marginally employed persons (with the exception of mini-jobs in the private sector).
These include, among others:
- Building trade
- Gastronomy
- Transportation and logistics
- Hostels
- Forestry
- Building cleaning
- Trade fair construction
In order to comply with the documentation obligation, as an employer you must note the start, end and duration of your employees’ working hours on a piece of paper or form and keep these notes.
The list must be correct and submitted no later than seven days after the end of the work period.
In this case, it is primarily customs that checks the documents. As you can imagine, customs are not known for their sense of humor when it comes to breaches of the documentation obligation, so you’d better stick to the rules.
The employer is always liable for any breach of the documentation obligation and the requirements for recording working hours. However, you can leave the recording and documentation to your employees. However, make sure that they comply with this. You do not have to make all entries yourself, but you should check them regularly.
