Extended Summary

Legislative provisions on limiting working hours and recognizing rest periods serve to protect the health and social life of employees. It is known that long working hours and insufficient rest periods have a negative impact on employees’ health and lead to an increase in occupational accidents. However, it is not always easy to determine the periods worked by employees. In particular, the widespread use of forms of work such as teleworking and trust-based work has made it more difficult to determine the hours worked by employees. In this context, the Court of Justice of the European Union, in a landmark judgment on 14 May 2019, ruled that Member States must oblige employers to establish an objective, reliable and accessible system for measuring the daily working time of each employee. According to the Court of Justice of the European Union, without a system for recording the daily hours worked by each employee, there is no guarantee that the rights to rest periods and maximum working hours enshrined in Directive 2003/88 will be guaranteed. The Court of Justice of the European Union also referred to the difficulty for employees to prove their overtime work and emphasized that other employees may be reluctant to testify against the employer. Transparent recording of working hours also helps employees to provide evidence of how long they have worked. The Court of Justice of the European Union leaves Member States room for maneuver with regard to the form and model of working time recording systems. In this way, the characteristics of different fields of activity can be taken into account. Almost three years after the Court of Justice of the European Union’s judgment, the German Federal Labor Court also ruled that employers must systematically record employees’ working hours. In German law, there is no legal obligation for employers to record all working hours of employees at the workplace. The legislation only requires employers to record daily overtime work. However, in its judgment, the German Federal Labor Court linked the obligation of employers to record working hours with the employer’s obligation to provide the necessary organization for occupational health and safety. Therefore, the legal basis for the obligation of employers to record working time is not found in the German Working Time Act, but in the Occupational Health and Safety Act. Especially after this decision, the obligation of employers to record working hours has been highly debated in German law and different opinions have been put forward as to how the legal basis for this obligation can be reached. Following the decision of the German Federal Labor Court, a Draft Law was drafted to regulate the obligation of employers to record working hours, the scope and limits of this obligation and the legal consequences of breach of the obligation. Thus, the Draft Law provides a normative basis for the recognition of a comprehensive working time recording obligation for employers and addresses the methodological deficiency in German law that the obligation to record working time has no legal basis. The Draft Law also stipulates that, contrary to the ruling of the Court of Justice of the European Union and the German Federal Labor Court, working time must be recorded electronically. The judgment of the Court of Justice of the European Union, the judgment of the German Federal Labor Court and the Draft Law allow for the transfer of the obligation to record working time to the employee in certain circumstances. Therefore, the obligation to record working hours may be delegated to employees, especially in the case of teleworking, trust-based working hours, etc. Delegation of the obligation to record working hours to employees can sometimes also protect employees from an important interference with their right to privacy and protection of personal data. However, it should be noted that the delegation of the obligation to record working hours to the employee will not relieve the employer from liability. In this case, the employer must take appropriate measures to ensure that the employee is aware of any breach of the statutory working time provisions. In conclusion, it can be said that the general trend in European Union law and German law is that employers should be obliged to record the working hours of their employees.