It is a document that is likely to have an impact on the everyday lives of many millions of employees in Germany. In 22 pages, the Federal Labor Court sets out the reasons for a decision with which it caused a sensation in September: employers must record the working hours of their employees, that was the short version of the decision. But it left many questions unanswered - questions that can be answered now that the Erfurt judges have presented their reasons for the decision.
For example, it had remained unclear whether employers merely had to provide their employees with a system for recording time or whether working time actually had to be recorded. The labor judges now write in the reasoning, which is available to the SZ, that the employer must also "actually make use" of time recording. In plain language: it is not voluntary, but mandatory.
Until now, it was also unclear how employees should record their working hours. For example, whether this must be done electronically or whether a manually maintained spreadsheet is sufficient. In the view of the labor judges, both are possible, and the specific arrangements are up to the local companies. Where there is a works council, it may have a say.
For labor lawyer Philipp Byers of the law firm Watson Farley & Williams, this leads to the conclusion that even after the decision, trust-based working time models will continue to be possible. "The employer can put timekeeping in the hands of the employees," he says.
It is disputed to which employees the time recording should apply; labor law experts interpret the reasoning from Erfurt differently. Byers is of the opinion that, as things stand, it applies to all employees of a company, including managers. Labor lawyer Kathrin Schulze Zumkley, on the other hand, understands the judges' reasoning to mean that executive employees do not have to record their working hours. So there is still some need for clarification, also for the federal government. "The traffic lights urgently need to do their homework," is how labor lawyer Byers puts it. The European Court of Justice had already ruled in May 2019 that employers must set up a working time recording system. Germany has not yet implemented this.
Meanwhile, politicians from the SPD and the Greens welcomed the BAG decision and held out the prospect of a legal specification of the rules in the near future. After an initial assessment of the decision, "I am pleased that the recording of working hours is not only offered, but must absolutely be applied," Bernd Rützel (SPD), chairman of the Bundestag Committee for Labor and Social Affairs, told the SZ. Frank Bsirske, the labor market policy spokesman for the Green Party's parliamentary group, praised the decision, "as this ensures that maximum working hours and rest periods are observed."
Rützel went on to say, "This is an important sign for justice and health protection. Every hour of work must be recorded." He added that the coalition is now "reacting quickly with a law that eliminates legal uncertainties." Commenting on the leeway left by the decision, the SPD politician said it also increases legal uncertainties, especially for smaller companies. "I therefore think it is important, for employees as well as for companies, that we quickly create a new regulation that is clear and understandable for companies and businesses and as simple as possible in its application."
Bsirske said that effective control and verification of working and rest times by the authorities would now be possible. In the upcoming legal regulation, "a certain degree of flexible working time models, such as trust-based working time, should continue to be possible," said the long-time former chairman of the Verdi trade union. In the case of trust-based working time, employees largely divide up their own working time and also record the working time themselves.
Pascal Kober, labor market and social policy spokesman for the FDP parliamentary group in the Bundestag, on the other hand, stressed that companies must now make full use of the remaining options for shaping the ruling. This concerns, for example, the form of recording, which is not prescribed. "Companies must therefore be allowed to decide for themselves how they want to record working time, i.e. with an app, Excel spreadsheet or on paper," Kober told the SZ. Delegating to employees must also be "possible in principle". The Federal Ministry of Labor had already announced that it intends to introduce a legal regulation next year after the BAG has published its reasoning.
Image by Gerd Altmann