Verdict on time recording: Will the flexible working time models survive?

UCompanies are constantly confronted with questions about working hours. How can working hours be designed for mobile work? Does the works council agree to trust-based working hours? Will the legislator update the Working Hours Act? With regard to the last question, the Federal Labor Court (BAG) triggered a small whirlwind when it announced that employers in Germany are already obliged to record the hours worked by their employees using a system. The statement in this clarity is new.

Specifically, it is about the following: Paragraph 3 of the Occupational Health and Safety Act obliges the employer to introduce a system with which the hours worked by the employees can be recorded, according to the press release on the decision of the BAG of September 13, 2022 (Az.: 1 ABR 22/21). A written justification is not yet available. So far, only compliance with break times, the maximum daily working time limits or rest periods had to be proven.

At numerous production and service locations, the obligation to record working hours should not trigger any changes. However, administrative locations, service and field service functions as well as the entire New Work movement benefit from flexible working hours that are lived “more uncontrolled”, even if the Working Hours Act must of course also be observed here.

There are also different models of trust-based working hours, in which the employer waives his managerial right to determine the location and distribution of working hours. The freedom gained goes well with today’s flexible and mobile working methods, in which the work location can be changed unilaterally by the employee and the organizational work processes can be designed in a more varied way. Could trust-based working hours or other flexible working time models now become inadmissible with the decision of the BAG?

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Increased susceptibility to errors

Although the trust-based working time would be burdened with a significant amount of administrative work, it would not be legally excluded. Because the models primarily concern the exchange relationship between money and time. The employer does not expect proof of time in order to calculate or justify the remuneration of the employee, but rather attaches importance to the fulfillment of the work task. Whether this takes place in one hour, seven or ten hours on a working day is not important.

The boundaries to flextime models are partially fluid. Even with trust-based working hours, it would be possible to regulate that the employees document the working hours per day in order to comply with occupational safety and health. Whether this includes the beginning and end of the daily working time including all interruptions or the volume per day as well as the location and extent of the break times depends on the justification of the BAG decision or the requirements of the legislator. The BAG’s press release does not contain anything about the content or formal requirements.

If there is an obligation to record time due to the current interpretation of § 3 ArbSchG by the BAG or due to a new legal regulation, working times must be able to be differentiated more clearly according to the working time protection law and from the point of view of remuneration law or company organization. Business trips at home and abroad with different means of transport and different active or passive roles of the employees would have to be “filtrated” in terms of working time law. Work interruptions during mobile work, in the home office or in the field are to be evaluated and recorded.

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Because the Working Hours Act and occupational health and safety also apply to mobile work or home office, the employees will be responsible for recording obligations here. In the case of mobile work or trust-based working hours, however, there can be an increased susceptibility to errors when recording and when monitoring compliance with working time protection law by managers. The employee himself and the manager responsible should therefore have an increased interest in being able to record or control times correctly.

Now the legislature must act

Away from the production sites, a door opens for the works councils to actively address the issue of working hours. Even if the BAG rejected the works council’s right of initiative in accordance with Section 87 of the Works Constitution Act in this resolution, the works council still has sufficient participation rights to position itself on the issue of working hours for employees. Because if the employer wants to introduce a time recording system, the works council has a say in the design. In addition, he already has a right to information under Section 80 of the Works Constitution Act.

The decision of the BAG forces the legislator to act. Employers must be given clearly defined room for maneuver so that mobile, agile and flexible work can be designed in a legally correct manner in a digitized working world. In essence, it must be avoided that employers, managers and their employees are constantly exposed to the danger of violating working time protection rights. In short: A modern and flexible working time protection law requires updated framework conditions and opening clauses. Flexible working time models and in particular trust-based working hours will continue to be legally permissible despite time recording. It remains to be seen which new hurdles will arise for these time models through case law or the legislature.

The author is a partner at Eversheds Sutherland.