November 2022
No.FRT_008

Duty to Record Working Hours:
Ruling of the German Federal Labour Court
Duty to Record working hours

We would like to inform you about the new obligation for employers to record their employee’s
working time due to the judgement of the German Federal Labour Court (Bundesarbeitsgericht“BAG”) of September 13th 2022 Following a ruling of the European Court of Justice (“ECJ”) fromMay the 14th 2019 , employers are now also under German law obliged to register all working timeof employees, not only overtime hours and work on Sun- and holidays. This can be done, for example,using a suitable program or a time clock. It does not matter whether the employee is doing telework
or in the office, the time must be documented, also for mobile work.

From EU Directives to German National Legislation
According to the German Working Time Act, employers were previously only obliged to document Sunday
and holiday work as well as overtime hours in detail and not the entire working time. The previously
common trust-based working time model is no longer possible after this ruling.
The BAG based its ruling regarding the interpretation of the German Occupational Health and Safety Act
on the "time clock ruling" of the ECJ. However, so far there are no specific requirements from the legislator
including possible exceptions. The legislator is bound the ruling of the ECJ, since European law prevails
over national law. Therefore, the requirement to record working time will be implemented into German
statutory law sooner or later. The way in which working time shall be recorded is not yet specificallyregulated, including permissible programs and to what extent these do not violate data protection. Indeed,such programs may only function as a time clock and not monitor the activities of the employee. Practicaluse for work outside of regular working hours is also unclear. For example, if an employee receives an
emergency call, does the recording of working time begin immediately upon receipt of the call or must theemployee first log on to his or her computer, clock in and only then take the call?
Important points to be considered:(i)
The working time must be recorded accurately, it does not matter where the employee is orwhen he/she works.
(ii)
The program may only be used for time recording, it may not monitor activity (Sec. 87 para.1
no. 6 WCA)
(iii)
Recording may be done via time clocks or similar programs; the employer is obliged to
introduce a system for his employees. Exact specifications by the legislator do not exist atpresent.
(iv)
Violation of the compulsory recording of working hours by the authorities can be punishedwith a fine of up to EUR 30,000.
Further changes in exceptional cases and to what extent this ruling will be amended by the legislature isstill unclear. We will inform you as soon as there is a development in this area. If you have any questions,

1©Atsumi & Sakai 2022

November 2022
No. FRT_008

please do not hesitate to contact us. We are happy to support you in this matter and all other labour lawquestions.
---------------------------------------------------------------------------------------------------------------------------THIS NEWSLETTER IS PROVIDED FOR INFORMATION ONLY; IT DOES NOT CONSISTUTE ANDSHOULD NOT BE RELIED UPON AS LEGAL ADVICE.
----------------------------------------------------------------------------------------------------------------------------2©Atsumi & Sakai 2022

November 2022
No. FRT_008

Authors/Contacts
Allison Jones*Associate

Kazuo Nakai
Associate
E: kazuo.nakai@aplaw.jp* Not Registered as a Foreign Lawyer in Japan

E: allison.jones@aplaw.de

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Atsumi & Sakai is a multi-award-winning, independent Tokyo law firm with a dynamic and innovative approach to legal
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We are the only independent Japanese law firm which is located in New York, London and Frankfurt and can provide realtime advice on Japanese law to our clients in Europe, the Middle East and Africa, as well as a more convenient service to ourclients in the Americas.

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Atsumi & Sakai is a partnership consisting of Atsumi & Sakai Legal Professional Corporation, a Japanese professional corporation, a foreign law joint venture underthe Act on Special Measures Concerning the Handling of Legal Services by Foreign Lawyers with certain Registered Foreign Lawyers of our firm, a Japanese Civil Codepartnership among Japanese lawyers, represented by Yutaka Sakai, a lawyer admitted in Japan, and a foreign law joint venture with Janssen Foreign Law Office,represented by Markus Janssen, a foreign lawyer registered in Japan to advise on the laws of the Federal Republic of Germany. In addition to lawyers admitted inJapan, our firm includes foreign lawyers registered in Japan to advise on the laws of the US States of New York and California, the People’s Republic of China, India,England and Wales, and the State of Queensland, Australia. Foreign lawyers registered in Japan to advise on state laws also are qualified to provide advice in Japan on
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will undertake any reserved legal activity as defined in the United Kingdom Legal Services Act 2007. Advice provided in Germany on the laws of Germany will beprovided by a lawyer admitted in Germany, and advice provided in New York on the laws of New York will be provided by a lawyer admitted in New York.

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