Working time recording - Excitement about working hours - recording or flexibility?
In the wake of decades with little work hour recording, control, and paperwork during mobile work or home offices, a digital time-tracking system is making a comeback. Work hour recording is mandatory for German companies, offices, and administrations, as stated in the ruling of the Federal Labor Court from September 2022 (1ABR 22/21). The President of the Federal Labor Court, Inken Gallner, justified the obligation of employers to systematically record the working hours of their employees based on the "Stechuhr" judgment of the European Court of Justice (ECJ) from 2019 and the German Labor Protection Law.
According to the ECJ, EU countries are obligated to introduce an objective, reliable, and accessible work hour recording system. This system aims to help contain excessive working hours and ensure rest periods. Trade unions argue that the downside of trust-based work includes largely unpaid overtime. Gallner stated during the hearing, "Time recording is also protection against exploitation by others and self-exploitation."
What applies in the daily work life
With the ruling on work hour recording, the "what" can be determined legislatively or through agreements between employers and employees, as reported by the German Press Agency in Erfurt. "We have found that works councils have initiative rights for this."
According to the German Labor Time Act, only overtime and Sunday work had to be documented before the highest court ruling, not the entire working time. The Federal Labor Court based its ruling on the Labor Protection Law instead of the Labor Time Act. Paragraph 3 already obligates employers to "introduce a system with which the working time provided by employees can be recorded." A change to the Labor Time Act regarding the practical implementation of work hour recording was quickly disputed.
What Labor Minister Heil is doing
The SPD in the Bundestag has been advocating for a new law – as overtime is often not recorded and compensated today. However, business associations and the FDP view the "Stechuhr judgment" as being in conflict with a modern, flexible working world.
Responsible in the federal government is Labor Minister Hubertus Heil. The SPD politician had initially promised a cautious solution – and presented a first draft bill almost a year ago. At the Employer Conference in the fall, the minister reaffirmed that he did not want to reintroduce the clock again.
The government has not yet resolved the issue. "Regulatory discussions on the legal implementation of the recording obligation are currently taking place within the government," a spokesperson for the Heil Ministry stated. There is also no new stance from the Green-Left party factions. The Heil Ministry spokesperson referred to the Federal Labor Court – as "the question of whether there is a recording obligation has been clarified," she added.
FDP: Eight-hour workday "outdated dogma"
Why the traffic light is reluctant to innovations in this area is evident from the debates following the latest growth package, which the government has fixed with the budget 2025. The partners are as divided on this issue as they are on many social questions. After the coalition's rescue through the budget agreement, the FDP in the Bundestag is advocating for an end to the eight-hour workday for German employees in its current form.
The growth package is "an important first step in the right direction, which prospectively should lead to a complete shift from hourly to weekly working hours," says FDP parliamentary group vice chairman Lukas Köhler. Today, the regular working time of employees may not exceed eight hours - for Köhler, an "outdated dogma."
The coalition leaders agreed in the night to Friday on tax and contribution freedom for surcharges for overtime, which exceed the weekly working hours of 34 hours for tariff employees and 40 hours for others.
Eight out of ten employees stated that their working time is recorded by the employer or documented by themselves. Gallner refers to statements from the Federal Labor Agency. According to estimates from Gallner, the recording of working hours has become more widespread. The Federal Labor Agency reported in a 2023 report that "the recording of working hours is somewhat more widespread than in 2021 and 2019."
What will happen to home office and trust-based working hours
Flexible models such as mobile work, home office, or core working hours are not restricted by the decision of the Federal Labor Court, according to Gallner. "That's all good. Trust-based working hour models are not in danger, quite the opposite." After all, the legal regulations apply like an eleven-hour rest period per day or a weekly maximum working time of 48 hours. She reacted to concerns from some employer and economic associations.
How Germany ended up on the "sinner list" of the EU
According to statements from experts and labor lawyers, Germany was close to a breach of contract with the EU - as the only major member state. Gallner confirms that the Federal Republic is no longer on the "sinner list," according to her knowledge.
Lukas Köhler, a member of the FDP in the Bundestag, advocates for an end to the eight-hour workday for German employees in its current form. The Federal Government, specifically Labor Minister Hubertus Heil, is currently engaged in regulatory discussions on the legal implementation of the work hour recording obligation. The preservation of trust-based working hour models, such as mobile work and home office, is not in conflict with the decision of the Federal Labor Court, according to Inken Gallner, the President of the Federal Labor Court.
Gallner referred to statements from the Federal Labor Agency, which reported in a 2023 report that the recording of working hours has become more widespread since 2019. The FDP views the "Stechuhr judgment" as being in conflict with a modern, flexible working world. The German Press Agency reported in Erfurt that works councils have initiative rights for determining the how of work hour recording.
The SPD in the Bundestag has been advocating for a new law to ensure the recording and compensation of overtime, as reported by the German Press Agency. The Federal Labor Court based its ruling on the Labor Protection Law instead of the Labor Time Act, which only required documentation of overtime and Sunday work before the ruling. Trade unions argue that the downside of trust-based work includes largely unpaid overtime.
According to the ECJ, EU countries are obligated to introduce an objective, reliable, and accessible work hour recording system. The German Labor Time Act already obligates employers to introduce a system with which the working time provided by employees can be recorded. The Federal Labor Court upheld this obligation based on the Stechuhr judgment of the ECJ and the German Labor Protection Law.
The Federal Labor Court ruling states that employers must systematically record the working hours of their employees to help contain excessive working hours and ensure rest periods. The President of the Federal Labor Court, Inken Gallner, justified this obligation as protection against exploitation by others and self-exploitation. Gallner stated during the hearing that time recording is also protection against exploitation by others and self-exploitation.
The ruling on work hour recording in Germany specifies that employers must record the entire working time of their employees, not just overtime and Sunday work as previously required. The Federal Labor Court argued that the Labor Protection Law, not the Labor Time Act, should be the basis for the recording obligation. Business associations and the FDP view the "Stechuher judgment" as being in conflict with a modern, flexible working world.
Germany was close to being placed on the "sinner list" of the EU for failing to comply with EU labor law regarding work hour recording, according to labor lawyers and experts. However, the Federal Republic is no longer on the "sinner list," according to Inken Gallner's knowledge. The growth package, which the government has fixed with the budget 2025, could lead to a complete shift from hourly to weekly working hours, according to the FDP.
