Employees must now record their working hours. Employers can give warnings and terminate employees if they make mistakes. Eight principles help to avoid this.
Since the Federal Labor Court (BAG) decided in a judgment published on Saturday that all German employees must record their working hours with immediate effect, millions of employees have been wondering what to expect. Do they face penalties if they don’t record their working hours yet? What formalities do they have to comply with? When can you use your records to claim overtime compensation?
FOCUS online explains in eight points what employees need to know now.
More on the subject: Reasons for the judgment published – which time clock rules employees and bosses must comply with immediately
Employees who do not yet record their working hours do not have to fear any penalties from the legislator: “The employer is responsible for enforcing the recording of working hours,” explains employment lawyer Marius Eichfelder from the Kupka law firm
If the employer asks its employees to record their working hours, they must do so. According to the BAG, companies are allowed to transfer the obligation to record working hours to their employees. If employees refuse to comply, the employer can warn them and, in the worst case, fire them. Eichfelder: “The recording of working hours is now a completely normal part of the work obligation.”
dr Martin Kupka is a specialist lawyer for labor law at the Munich law firm Kupka
Even if the BAG leaves open the possibility of recording working hours with pen and paper or using an Excel spreadsheet, Eichfelder considers these options to be too contestable. In a ruling on the recording of working hours, the European Court of Justice prescribes objective, reliable and accessible methods. German systems must also comply with these rules, says Eichfelder: “The legislature still has to decide whether this applies to an Excel table in which I can enter everything. I doubt it.” Most companies would probably have to use technical solutions such as chip cards or cell phone apps.
If an employer uses an electronic solution to record working hours, he must provide all employees with the technical means to use it. If he relies on an app, he cannot demand that all employees buy cell phones, explains Eichfelder. He can’t even demand that employees install the app on their private cell phones. “If someone doesn’t have a work cell phone, they don’t have to use an app either.” The employer must offer employees alternatives if they request them.
“The grounds for the BAG’s judgment do not change the legal situation that much,” says Eichfelder. Lawyers and courts had been expecting the rules for years. What is new, however, is that the detailed justification for the judgment means that there are enough specific requirements for employees to actually be able to demand the recording of working hours. If a company refuses to record the working hours of its employees, works councils could take action: “The grace period for employers is over.”
Whether each individual employee will have the right to sue will only be decided next year when the first proceedings begin. However, Eichfelder considers this unlikely because uniform regulations should apply to companies: “If individual employees complain, the judgment only applies to them. The colleagues continue to work independently of this.” The time recording obligation will therefore probably only be able to be effectively enforced by works councils.
If employees do not want to risk a warning or dismissal, they must record their working hours to the minute. This also includes the exact recording of breaks, explains Eichfelder. “Every break, no matter how long, has to be recorded. When it comes to what counts as a break, you can rely on common sense.” Anyone who forgets to make a note of a break should write it down as soon as possible.
In addition to the lunch break, breaks also count as small, complete interruptions in work such as a cigarette break. However, going to the toilet, going to the coffee machine and having a short chat with colleagues are part of the working time: employees either continue to think about tasks or talk to colleagues about them.
In order for the working time recording to be used later to justify the reduction or payment of overtime, employees must prove that the employer ordered or approved the overtime. “Most of the time, lawsuits for overtime payments fail because the employer claims he didn’t know anything about it,” says Eichfelder.
Digital records probably solve this problem because the employer sees the working hours of his employees in the system. However, if an employer has not yet introduced a digital system, employees should regularly have their manual countersigned by their boss. Then the employer is informed. If the boss refuses to sign, employees can cite colleagues as witnesses for the overtime – if they are willing to do so.
Eichfelder advises employees to avoid panic when dealing with timekeeping. The legislature has not yet set penalties for employers who do not record working hours. This will probably follow next year. Because small businesses in particular, such as practices with only one or two employees, are now facing an enormous burden, employees should not expect changes to be made too quickly.
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