With its decision of 13 September 2022, the Federal Labour Court – as far as can be seen from the court’s press release available to date – follows the line taken by the European Court of Justice in its ruling of 14 May 2019 (Case C-55/18) and, not least, the Emden Labour Court in its ruling of 20 February 2020 (our press release of 13 May 2020). May 2020): German employers are already obliged under current German employment law to maintain a system that enables employees to record their working hours (and thus also and in particular those that exceed the contractually owed amount).
The introductory sentence of the press release clearly defines the view of the Federal Labor Court: ” According to Section 3 (2) No. 1 ArbSchG, the employer is obliged to introduce a system with which the working hours worked by the employees can be recorded.” The Occupational Health and Safety Act applies to all companies in Germany, regardless of their size. And regardless of whether a works council exists or not. The press release is probably only to be understood as meaning that all companies in Germany will be obliged to record working hours in future. The awaited justification / judgment also applies to home office and teleworking.
Conclusion
Until the reasons for the ruling are presented, it would be pure speculation to make statements about what this system could look like or what level of detail the recording of working hours must reach. At this point in time, however, it should already be clear that no further legislative implementation standards are required that would oblige employers to introduce time recording systems (if they do not already exist) and use them to record the actual hours worked (irrespective of any contractual provisions that may deviate from this). Employers must “ensure a suitable organization and provide the necessary resources” to ensure health protection, the BAG continued (decision of 13.09.2022, ref. 1 ABR 22/21). This supposedly “new” legal situation applies with immediate effect.
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