ECJ ruling - When will the recording of working hours become mandatory?
The ECJ ruling on the recording of working time

When will the ECJ ruling make the recording of working hours mandatory?

The ECJ’s ruling on the recording of working hours raises eyebrows

Back in May 2019, the European Court of Justice (ECJ) decided that companies in the EU must record all hours worked by their employees in the future. Although the German legislature has not yet transferred the ruling into national law, it is already clear that the landmark ruling goes beyond the legal situation that has been binding in Germany to date and will change German labor law. In addition, there are initial court decisions based on the ECJ ruling, such as the Emden Labor Court. In this situation, the question regularly arises as to which regulations actually apply and what the ECJ ruling on the recording of working hours means for companies. In the Corona pandemic, this issue is becoming even more critical, particularly due to the topics of short-time work and home office.

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What regulations are in place so far?

Currently, the German Working Hours Act (ArbZG) only stipulates the obligation to document overtime and work on Sundays and public holidays. Further obligations to record working hours may arise from individual legal standards, such as the Minimum Wage Act or the Act to Combat Clandestine Employment, or from a collective bargaining agreement or a works agreement concluded between the employer and the employee. In addition, the works council in companies under § 80 1 No. 1 of the Works Council Constitution Act (BetrVG) that the laws and regulations applicable for the benefit of the employees are implemented. These include, among others, the requirements of the Working Hours Act. However, there has not yet been a comprehensive obligation for companies to record the working hours of their employees.

What will change in the future?

German lawmakers will have to amend the Working Hours Act (ArbZG) accordingly in accordance with the ECJ ruling or pass an additional law requiring employers in the future to record the total working hours of their employees using an objective and reliable system. So far, however, no details are known as to what the concrete legislative design will look like. A regulation is no longer expected before the federal election in the fall of 2021. However, due to the advanced time, the pressure on the legislator to implement the ECJ ruling is increasing.

What are the risks for companies in this situation?

In several court rulings, the Emden Labor Court has already referred to the ECJ ruling on the recording of working hours, arguing that an obligation for German employers to record time can already be derived from this case law. Two of these rulings specifically dealt with overtime worked by employees. The Emden Labor Court came to the conclusion that the ECJ ruling already has an impact on the burden of proof and presentation in overtime litigation in favor of the employee.

Will companies have to deal with additional bureaucracy?

In its ruling, the ECJ merely states that the data must be reliable, objective and easily accessible. It can be assumed that German legislators will also not aim for narrow specifications in their implementation. A modern software solution for digital time recording and absence management streamlines processes through an intuitive recording process and digital integration of all employee groups in all industries. For example, the construction worker who books at the terminal on site, the sales employee who books in her car via her smartphone app, or the commercial employee in the home office who can conveniently record his working hours via an employee portal. Ideally, the recorded data is automatically evaluated and is transferred directly to the payroll accounting system (such as DATEV) by digital means. This results in less bureaucracy and an elimination of manual administrative processes.

Does the ECJ ruling mean the end of so-called trust-based working time?

Trust-based working time and trust-based recording of working time are not mutually exclusive. Especially in industries and workplaces where there is already a high degree of flexibility in terms of working hours and work location, the use of a digital tool for time recording means a real benefit for employees and employers. After all, the recording of working hours ensures that activities on often very fragmented working days ultimately become transparent and comprehensible for both sides.

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