Time & Attendance mandatory – this will change in 2024

Time & Attendance becomes mandatory. Even if we are still stuck on the draft bill in March 2024, the law will probably come soon. And that’s why we’re talking today about what will change with the new law.

1. What do we know?
2. What does the draft law say?
3. What is not quite clear yet?

Let’s start with what we know for sure. The law on working time recording is definitely coming, as the European Court of Justice (ECJ) has already decided this in 2019. The EU member states must transpose the ruling into applicable law. Following the ECJ ruling and a further ruling by the Federal Labor Court in 2022, the Federal Ministry of Labor and Social Affairs has proposed a draft amendment to the current Working Hours Act.

Up to now, employees have only been required by law to document overtime hours worked. This is important so that you can check whether the Working Hours Act – i.e. maximum working hours, breaks and rest periods – is being complied with.

There has been criticism of this regulation in recent years because it is not so easy to document overtime if you don’t even know when someone started working. Recording is actually only possible manually.

Therefore, in future, all working hours will be recorded and overtime will be calculated automatically.

What exactly does the draft say?

“the employer is obliged to electronically record the start, end and duration of the employee’s daily working time on the day the work is performed.”

There are four interesting things in this one sentence.

1. “The employer is obliged”

The responsibility therefore lies with the employer. They must ensure that a suitable tool is available for employees to use.

2. “Start, end and duration of employees’ daily working hours”

So it is not enough to simply write down that you have worked 8 hours. It must also be documented when working hours began and when you finished work.

3. “on the day the work is performed”

The working time must be recorded immediately on the respective day. For example, you cannot simply enter the times in a table at the end of the week. There are exceptions in certain cases, for example through collective agreements or works and service agreements. Working hours must then be recorded by the end of the week at the latest.

4. “to record electronically”

The word “electronic” changes a lot. There are many companies – especially in the construction industry or in businesses such as electricians or plumbers – that simply write their current times on a piece of paper.

A clear statement: this will no longer be possible with the new law. Other solutions are needed. The law does not say exactly what these must look like. Employers are quite free in this respect. This means that completely normal time clocks are possible, which then record the data digitally and store it centrally. But tools on employees’ computers are also conceivable. These automatically record the start and end of working hours. And of course there are also tools where employees enter their times manually. This is particularly important for flexible work locations. If a company has a lot of people working from home, a time clock doesn’t make much sense. Of course, the time recording system also has to work at home.

Exceptions to the Working Hours Recording Act

The most important question with new laws is: Does this also apply to me? And of course there are also exceptions to the new law on working time recording.

The draft currently states that companies with fewer than 10 employees are exempt from the obligation. In addition, companies abroad that do not have a permanent establishment in Germany and send fewer than 10 employees to Germany. Collective agreements, works and service agreements may also provide for exceptions to electronic recording.

There is also a sentence stating that the obligation to keep records does not apply to employees “for whom the total working time is not measured or cannot be determined in advance or can be determined by the employees themselves due to the special characteristics of the work performed”.

This only affects a very small group and if you want to use it, you probably have to be able to make a very good case for it.

Further regulations on working time recording

According to the ECJ ruling, the way Time & Attendance is recorded must be reliable, objective and easily accessible. However, there are no specific requirements. Within the EU, the paper form will also be possible, but it looks as if Germany is about to go one step further and implement Time & Attendance completely electronically.

When exactly will this law come into force and when will it apply? No one knows exactly when it will be decided; the government is not yet in complete agreement as to which changes are still to come.

Once the law is in place, companies will have until the beginning of the next quarter to implement it. There is also a transitional period of one year during which companies can switch to electronic tools. During this period, the paper form is still sufficient. The transition period may vary depending on the size of the business.