BAG on the Duty to Record Working Time

The BAG working time recording decision in brief

The BAG working time recording decision is the Federal Labour Court's order of 13 September 2022 – 1 ABR 22/21. The court held that employers in Germany are obliged under § 3(2) no. 1 of the Occupational Safety and Health Act (Arbeitsschutzgesetz, ArbSchG) to record the start and end of the daily working time of their employees, to the extent the legislature has not made use of the derogations permitted by Article 17(1) of the Working Time Directive 2003/88/EC.

Because this obligation already exists by law, the court further held that a works council has no right of initiative, enforceable through the conciliation committee, to require the introduction of an electronic time recording system.

The decision surprised many observers. Until then, the prevailing view was that German employers only had to record working time exceeding eight hours a day under § 16(2) of the Working Hours Act (ArbZG), and that the CJEU's 2019 CCOO judgment required legislative action before it could bind employers. The BAG instead read the existing health and safety provision in conformity with EU law. The result is that the obligation has applied since the CCOO judgment itself, without any transition period.

Facts of the case

The employers jointly operated a residential care facility, where a works council had been elected. In 2018, employer and works council concluded a works agreement on working time and negotiated, without success, on a works agreement on time recording. The employers decided not to introduce an electronic time recording system. The works council then applied to the labour court to set up a conciliation committee (Einigungsstelle) on the introduction and use of electronic time recording and later sought a declaration that it had a co-determination right, including a right of initiative, under § 87(1) no. 6 of the Works Constitution Act (BetrVG).

The labour court of Minden rejected the application by order of 15 September 2020 (2 BV 8/20). On the works council's appeal, the Regional Labour Court of Hamm granted it by order of 27 July 2021 (7 TaBV 79/20). The BAG set aside the Hamm decision on the employers' appeal on points of law and dismissed the works council's appeal, so the works council lost, but the reasons transformed the legal landscape for all employers.

The duty to record under § 3(2) no. 1 ArbSchG

Section 3(2) no. 1 ArbSchG requires the employer, in order to plan and implement occupational safety measures, to ensure a suitable organisation and provide the necessary means, taking into account the type of activities and the number of employees. The BAG held that, interpreted in conformity with the Working Time Directive and the CJEU's ruling in CCOO, this includes the duty to introduce a system recording the start and end, and thus the duration, of daily working time including overtime.

The court rejected the argument that the more specific recording duty in § 16(2) ArbZG, limited to working time beyond eight hours, precluded this interpretation, because § 3(2) no. 1 ArbSchG serves a different, broader purpose.

Importantly, it is not enough for the employer to make a system available for employees to use voluntarily. Referring to the CJEU, the BAG stated that the employer must actually use it, meaning that working time must be recorded in practice. On the other hand, the employer has discretion over the design: recording need not be electronic, and paper records can suffice depending on the activity and the company. The recording itself can be delegated to employees, provided the employer ensures that the system works.

Works council rights after the BAG working time recording order

Under § 87(1) BetrVG, co-determination rights exist only where there is no statutory regulation. Because the employer is already obliged by law to introduce a recording system, the BAG held that the works council cannot use its right under § 87(1) no. 6 BetrVG, which concerns technical devices for monitoring, to force the introduction of an electronic system.

However, the court pointed out that the works council has a co-determination right, including a right of initiative, under § 87(1) no. 7 BetrVG on the design of the recording system, since that provision covers regulations on health protection within the framework of statutory provisions. Where an electronic system is chosen, § 87(1) no. 6 BetrVG also applies.

In practice, the BAG working time recording order shifted negotiations. The question is no longer whether time is recorded, but how: which method, which data fields, how breaks and travel time are treated, who can see the data, how corrections are made and how the data may be used. Employers who want to keep flexible working models, such as trust-based working time, need to agree on recording methods that fit them.

Remote work, trust-based working time and field staff

The BAG working time recording obligation applies regardless of where employees work. For remote and mobile work, recording through an app or a web form is usually the most practical solution; employees log start, end and breaks, and the system flags breaches of maximum working hours or rest periods. For field staff, such as sales representatives or service technicians, the employer must decide whether travel time counts as working time under the ArbZG and how it is recorded, which often requires clarification in the works agreement.

Trust-based working time (Vertrauensarbeitszeit), in which the employer does not control when employees work as long as they deliver results, remains a permissible way of organising work. What has changed is that it can no longer mean that working time is not recorded at all. Many employers combine trust-based models with self-recording by employees and refrain from using the data for performance control, which can be agreed with the works council. Senior specialists who are not executive employees within the meaning of the Works Constitution Act are covered, which often surprises them and their managers. Clear communication explaining that recording serves health protection and legal compliance helps acceptance.

Who is covered and what remains open

The BAG working time recording obligation covers employees for whom German law has not made use of the derogations in Article 17(1) of the Working Time Directive. Executive employees within the meaning of § 5(3) BetrVG are excluded from the ArbZG by § 18(1) no. 1 ArbZG and are therefore generally considered to be outside the duty. For other groups, such as employees with significant autonomy over their working hours, the position is less clear, because Germany has not enacted a specific derogation for them. Employers should be cautious about excluding groups without a clear statutory basis.

Several questions remain open pending legislation. The ArbSchG does not prescribe how long records must be kept or when they must be made, and there is no specific fine for failing to record time; authorities can, however, issue orders under the ArbSchG, and breaches of such orders can be fined. The relationship to overtime pay claims has been addressed by the BAG in separate case law: the duty to record time does not in itself shift the burden of proof for overtime claims to the employer, although time records often decide such disputes in practice.

Time records, overtime claims and evidence

Time records created under the BAG working time recording obligation will often be the central evidence in disputes about overtime pay. Under the BAG's case law, an employee claiming overtime pay must still show that the hours were worked and that the employer ordered, approved, tolerated or needed them. The duty to record time does not reverse that burden. In practice, however, an employee who can point to the employer's own records showing additional hours is in a much stronger position, and an employer that has failed to keep records may find it harder to contest the employee's account.

Employers should therefore make sure that time records are accurate and that the treatment of overtime is clear: whether overtime must be approved in advance, whether it is compensated by pay or time off, and whether employment contracts or collective agreements contain valid clauses on overtime compensation. Records also matter in disputes about rest periods, in proceedings concerning occupational health and safety, and in dismissal cases where working time fraud is alleged. Reliable data protects both sides.

Legislative developments

After the decision, the Federal Ministry of Labour presented a draft amendment to the ArbZG in 2023 that would have required electronic recording on the day of work, with transition periods and exceptions for small businesses and collective agreements. It was not enacted. The current federal government has announced plans to reform working time law, including the possibility of a weekly rather than daily maximum working time, and to regulate electronic time recording. Until a new law is adopted, the BAG working time recording order remains the basis of the obligation, and employers should not wait for legislation before complying.

Implementation checklist

• Map all employee groups and confirm whether any are outside the obligation, in particular executive employees.
• Choose a recording method suited to the workplace: terminals, apps, spreadsheets or paper.
• Ensure records show start, end and duration of daily working time, including overtime and, in practice, breaks.
• Instruct employees where recording is delegated and carry out regular checks.
• Negotiate the design with the works council under § 87(1) nos. 6 and 7 BetrVG.
• Address data protection: legal basis, purpose limitation, access rights and retention.
• Use the data to monitor compliance with maximum working hours and rest periods and react to breaches.

How TRW & Co helps

We advise employers on implementing the BAG working time recording obligation. We design recording concepts for different workforces, negotiate works agreements, align data protection documentation and defend employers in proceedings before conciliation committees and labour courts, including overtime claims. Our work connects our works councils and employment practices; see also our notes on the CJEU CCOO judgment and the planned working time reform. Please contact us to discuss your organisation. This briefing is general information and not legal advice.