It is a document that is likely to affect the everyday lives of many millions of workers in Germany. On 22 pages, the Federal Labor Court explains the reasons for a decision with which it caused a sensation in September: Employers must record the working hours of their employees, that was the decision in short. But it left many questions unanswered – questions that can be answered now that the Erfurt judges have presented their reasons for the decision.
It remained unclear whether employers only have to provide their employees with a time recording system or whether working hours actually have to be recorded. The labor judges now write in the justification that the SZ has that the employer must “actually make use of” time recording. In plain language: It is not voluntary, but mandatory.
So far, it has also been unclear how employees should record their working hours. Whether this has to take place electronically, for example, or whether a manually maintained table is sufficient. From the point of view of the labor judges, both are possible; the specific design is the responsibility of the local companies. Where there is a works council, it can have a say.
For the employment lawyer Philipp Byers from the law firm Watson Farley & Williams, this leads to the conclusion that trust-based working time models are still possible even after the decision. “The employer can put time tracking in the hands of the employees,” he says.
It is disputed which employees the time recording should apply to, labor lawyers interpret the reasoning from Erfurt differently. Byers is of the opinion that, as of now, it refers to all employees of a company, including the managers. The employment lawyer Kathrin Schulze Zumkley, on the other hand, understands the reasoning of the judges to mean that executive employees do not have to record their working hours. So there is still some need for clarification, also for the federal government. “The traffic light urgently needs to do its homework,” as labor lawyer Byers puts it. The European Court of Justice had already ruled in May 2019 that employers must set up a timekeeping system. Germany has not yet implemented this.
The regulation ensures that rest periods are observed
Meanwhile, politicians from the SPD and the Greens welcomed the BAG’s decision and promised that the rules would soon be clarified by law. After an initial assessment of the decision, “I am pleased that the recording of working hours is not only offered, but must be used,” said Bernd Rützel (SPD), chairman of the Bundestag Committee for Labor and Social Affairs, the SZ. The Green Group’s labor market policy spokesman, Frank Bsirske, praised the decision “because it ensures that maximum working hours and rest periods are observed”.
Rützel continued: “This is an important sign of justice and health protection. Every hour worked must be recorded.” The coalition is now reacting “quickly with a law that eliminates legal uncertainties.” Regarding the leeway left by the decision, the SPD politician said that this also increases legal uncertainties, especially for smaller companies. “I therefore think it is important, for the employees as well as for the companies, that we quickly create a new regulation that is clear and understandable for companies and companies and as easy to use as possible.”
Bsirske said that effective control and verification of working and rest times by the authorities is now possible. With the forthcoming legal regulation, “a certain degree of flexible working time models, such as trust-based working hours, should continue to be possible,” says the long-time former chairman of the Verdi union. With trust-based working hours, employees largely organize their own working hours themselves and also record their working hours themselves.
Pascal Kober, labor market and social policy spokesman for the FDP parliamentary group in the Bundestag, however, emphasized that the remaining design options of the judgment for the companies must now be exhausted. This affects, for example, the form of recording, which is not mandatory. “Companies must therefore be able to decide for themselves how they want to record working hours, i.e. with an app, Excel spreadsheet or on paper,” said Kober of the SZ. Delegating to the employees must “in principle also be possible”. The Federal Ministry of Labor had already announced that it intends to introduce a legal regulation next year after the BAG’s justification has been published.