On the way to mandatory working time recording? The legislative stalemate enters the next round

February 2022 · Estimated read time: mins

Worauf sich Unternehmen nicht nur der betroffenen Branchen einstellen müssen

According to government plans, employers in a number of sectors are to record their employees' working hours electronically from October 2022. The surprise about this in the affected industries is great. And for all other employers, the question arises as to whether the introduction of general working time recording will now also gain momentum and whether the new industry-specific obligations will even serve as a blueprint for this.


Since the decision of the European Court of Justice of May 14, 2019 (C-55/18, CCOO/ Deutsche Bank SAE), according to which the interpretation of the Working Time Directive (2003/88/EC) in particular requires Member States to introduce an objective, reliable and accessible system to measure the working time worked by each employee on a daily basis, employers have been waiting with bated breath to see what the German legislator will make of this requirement with regard to mandatory general working time recording. As a reminder, the German Working Time Act currently only requires that working times of more than eight hours per working day be documented.


In the meantime, the legislator was already briefly overtaken once on the right by the Emden Labor Court, when the latter, simply put, thought that existing national law should be interpreted in line with the decision of the European Court of Justice and that the employer was thus already obliged to comprehensively record working hours; however, the appellate court has put a stop to this for the time being (see here). The Federal Labor Court (5 AZR 359/21) is expected to hear the case on May 4, 2022.


In the coalition agreement of the German “traffic light” coalition, it is stated with all political caution that it will be examined "which need for adjustment we see in view of the case law of the European Court of Justice on working time law". A foretaste of what could come is now being provided by the Federal Ministry of Labor and Social Affairs (BMAS) with its draft bill for a second law on changes in the area of marginal employment.


New regulation on mini-jobs as a Trojan horse for mandatory recording of working hours

According to widespread expectations, this law was actually intended above all to ensure that so-called mini-jobbers can continue to work their current hours even after the general minimum wage is raised to 12 euros from October 2022. Accordingly, the draft provides that the marginal earnings threshold will be raised to 520 euros per month in the future, so that up to 10 hours per week can continue to be worked as a mini-jobber.


However, employers in various sectors will be caught cold by the planned amendment to Section 17 (1) Sentence 1 of the Minimum Wage Act, which is to provide as follows in the future:

"An employer who employs workers pursuant to Section 8(1) of the Fourth Book of the Social Code or in the economic sectors or branches of the economy specified in Section 2a of the Act to Combat Clandestine Employment shall be required to record electronically and in a manipulation-proof manner the beginning of the daily working hours of the workers in each case immediately upon commencement of work, as well as the end and duration of the daily working hours in each case on the day on which the work is performed, and to keep such records electronically for at least two years beginning on the date relevant to the recording. [note: non-official translation by author]

An identical amendment is planned for Section 19 (1) sentence 1 of the Posted Workers Act and for Section 17c (1) of the Temporary Employment Act.


As a result, millions of employees in a wide variety of sectors - and completely irrespective of the scope of employment - will be subject to strict, direct, electronic recording of working hours. The documentation obligation also applies to all mini-jobbers, regardless of the industry they work in. However, all employees in 11 sectors are covered, including the construction industry, the hotel and restaurant industry, and the freight, transport and related logistics industry, as well as all employees in sectors with generally binding collective agreements and - last but not least - all temporary workers.


Construction industry and co. are already obliged to record working hours today 

In particular, the planned elimination of the seven-day deadline is now bringing the affected industries to the barricades, because the immediate recording of the start and end of work that will be required in the future can in many cases (fitters on a construction site; truck drivers on a multi-day route, etc.) inevitably only be done with electronic devices that the employees must carry with them. These technical requirements will have to be implemented millions of times over by October 1, 2022, when the new regulation is scheduled to come into force, and often it will not be enough to install an app on the employee's cell phone. 


It remains to be seen whether the simplifications currently in place for certain employees in the affected industries in the form of the Minimum Wage Documentation Obligations Ordinance (exemption for employees with a regular monthly salary of more than EUR 2,958 gross) and the Minimum Wage Recording Ordinance (employees with exclusively mobile activities) will be retained in this form.


And when will all the rest follow?

This applies all the more to the big question of whether, when and in what form a general obligation of employers to document the working hours of their employees will be introduced. In any case, the current draft legislation shows that things can move very quickly and that at least the BMAS officials are anything but squeamish, not least in view of the short implementation period. Certainly, the industries currently affected are under particular scrutiny as being "affinity to clandestine employment". But if the draft bill's sole justification for the new documentation requirements is that they serve to "reduce bureaucracy through digitization" and that "the electronic form of recording working time (...) can permanently relieve employers," then employers and their interest groups should keep a wary eye on future developments on the way to a general obligation to document working time.

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