Correct Recording of Working Hours in Germany
Birgit Ennemoser (birgit.ennemoser@auren.de), Head of HR Services
Uncertainties regarding the recording of working hours continue to arise. To clarify: Since August 2022, the German Evidence Act (Nachweisgesetz) has required that the terms and conditions of employment relationships be documented in the employment contract in accordance with Section 2 NachweisG, including the following “minimum content”:
- Agreed working hours, rest periods, and breaks
- Entitlement to paid annual leave
- Regulations concerning overtime
In addition to specifying overtime compensation, including any applicable surcharges, it is advisable to define whether and under what conditions overtime may be required
Without such an overtime clause, employees are generally entitled to either monetary compensation or compensatory time off for overtime worked. However, in the event of a dispute, the burden of proof lies with the employee.
It is important for employers to note that overtime can only be mandated if this is permitted under an employment contract, a collective bargaining agreement, or a works agreement.
Furthermore, the European Court of Justice (ECJ) has ruled that overtime must be recorded. However, the German Working Hours Act (Arbeitszeitgesetz, ArbZG) does not currently impose a general obligation to record working hours. Such a requirement exists only in specific cases, for example in Section 17(1) of the Minimum Wage Act (Mindestlohngesetz, MiLoG) for marginally employed workers and employees in certain industries pursuant to Section 2a Section 2a of the Act to Combat Undeclared Work and Illegal Employment (Schwarzarbeitsbekämpfungsgesetz, SchwarzArbG) as well as Section 21a(7) ArbZG for the road transport sector. In addition, Section 16 (2) of the German Working Hours Act (ArbZG) only provides for a recording obligation for working hours in excess of 8 hours per day.
Therefore, the German ArbZG does not fully comply with the ECJ’s requirements. Since the legislature has not introduced specific regulations, the German Federal Labor Court (Bundesarbeitsgericht, BAG) has intervened and established that there is a legal obligation to record working hours in Germany. However, the exact implications of this ruling remain unclear.
For reasons of burden of proof, it still seems advisable to use a working time recording system to ensure clarity. However, this applies both in favour of and against the legislator. In general, this is actually a requirement established by case law, but there is still no corresponding law.
