Mmillion employees in Germany break the law every working day. Even if many of them are not aware of it – last September the Federal Labor Court in Erfurt decided that there is a general obligation to document working hours.
But Germany is in a legal gray area in this regard. “The obligation is very clear,” says Hamburg employment lawyer Michael Fuhlrott. “But in many places it is simply not implemented.”
In their decision, the Erfurt judges referred to a ruling by the European Court of Justice (ECJ). This dates back to 2019 – and it is binding. However, neither companies nor employees need fear penalties. Because Federal Minister of Labor Hubertus Heil (SPD) has so far failed to Occupational Health and Safety Act to be added accordingly.
After all, there is now a draft law that is intended to clarify the obligation to document: All employees must therefore record their working hours – and where paperwork has previously prevailed, it is to be converted to electronic recording.
No sooner were Heil’s plans made public than they were torn up by business associations. Achim Berg, President of the Bitkom digital association, says it is outdated, annoying and unworldly when every employee has to document their times in minute detail.
The employers’ association says that the general “bureaucratic flood” is becoming a competitive disadvantage for Germany. And overall metal head Stefan Wolf explained that lawyers and consultants were in a “gold rush mood” given the uncertainties of many entrepreneurs.
“German lust for fear and penchant for drama”
The tone of the debate is not only slightly shrill among opponents of the project. Personnel consultant Katja Bauer, for example, who supports companies with the introduction of time recording systems, speaks of “German fear and the tendency to drama”. Social organizations and trade unions in particular consider the nationwide recording of working hours to be “long overdue”.
“This allows loopholes – around minimum wages to undermine – finally be closed, “says the deputy Verdi chairwoman Andrea Kocsis. In addition, it can be verified to what extent employees actually work overtime.”
And these numbers are remarkably high, especially in Germany. Employees in Germany worked around 1.3 billion hours of overtime last year, according to a response from the federal government to a request from the left-wing faction. The overtime corresponds to 809,000 full-time jobs. Converted into 2022, each employee worked about 31 hours of overtime.
“It’s good when the real working times are finally recorded,” says Kocsis. Because without a time recording system that measures the daily working time, neither the number of hours worked nor rest periods and the number of overtime hours could be reliably determined. “However, this is indispensable for compliance with working time protection.”
And while two are arguing, the third is generally happy – as is the case here. Because even if the law is not yet in force: German companies will not be able to avoid time recording. Companies that deal with such systems should see golden times ahead.
“In particular, medium-sized companies are still lagging behind when it comes to time recording and have a lot of catching up to do,” says Markus Steinberger, Managing Director of Tisoware, which also specializes in the time tracking specialized.
“Many small and medium-sized companies are still miles away from legally compliant – i.e. electronic – timekeeping,” he says. Employees can already use simple Excel spreadsheets for documentation. Many companies currently rely on software giants such as Microsoft.
Some turn to startups like Clockin. The young company from Münster has around 2,000 paying customers, as managing director Frederik Neuhaus explains. By the end of the year, it should be twice as many.
Capture by cellphone
With the Clockin app, employees can record working hours and breaks, the data is displayed to the employer for billing, and at the same time employees can keep track of the overtime account. This costs companies 3.50 euros per month and employee for pure time recording. If additional functions, such as a holiday booking system, are used, it is nine euros.
“The specific effects on companies are overestimated,” says Neuhaus about the obligation to record time. He himself worked for several years after the trust period, for example in a bank. “Some politicians are not aware of how easy it is to do something like this these days,” says the company boss.
At Clockin, the working hours are documented by each employee loading a program onto their cell phone or computer and logging in and out with just a few clicks. “The problems are not as big as they are portrayed,” says Neuhaus.
A survey of Digital Association Bitkom comes to a different conclusion. Accordingly, the majority of companies are critical of the obligation to record working hours and call for comprehensive improvements.
Two thirds fear that the introduction or adjustment of the timekeeping systems will cause “considerable additional financial and administrative work”. 603 companies with at least 20 employees were surveyed. In any case, 59 percent of the companies consider it difficult to implement precise documentation of working hours in practice.
The resistance of numerous associations did not go unnoticed. The Union parliamentary group has just submitted an application that is intended to soften and make the law more flexible before the vote in the Bundestag, presumably after the summer break. However, not much would remain of the original plans of Heils.
Because not only should the employer have “free discretion in the choice of the recording instruments” – in practice, slips of paper would be sufficient, external providers would not be needed. According to the will of the Union, the trust-based working hours, after which almost 20 percent of Germans work, should continue to be possible without recording – and this is exactly the crux of the reform.
“De facto simply continuing with the trust-based working hours without any recording will not work in view of the specifications of the ECJ,” says employment lawyer Michael Fullroth. The lawyer suspects that some employers might find it convenient that the legal situation is still so vague.
“Many employees today work more than they have to without documenting it,” he says. This dark field threatens to be cleared up by the law. “For some companies, there is certainly a fear that productivity could fall,” says the employment lawyer.
Weekly working time as a substitute
Entrepreneur Neuhaus sees plenty of scope for recording working hours. “You don’t want to and can’t record working hours 100 percent correctly, especially with classic office jobs or in the creative industries“, is said.
Neuhaus therefore also considers one of the points that the Union wants to write into the law to be practicable: instead of the daily maximum working time, a kind of weekly quota should apply, whereby the hours to be worked could be flexibly distributed over five days. This also corresponds to the will of many employers: 78 percent of the companies surveyed by Bitkom would like the new legal regulation to replace the daily maximum working time with a weekly maximum.
In any case, until there is final clarity, there are no penalties. “The respective labor inspectorate of the federal states would be responsible for this,” says lawyer Fullroth. In his opinion, a check will only succeed on a random basis, for example after anonymous reports of violations.
There is also the option of overturning the law – at least in theory. “You could have the expected law in Karlsruhe, like any law, checked for constitutionality,” says the lawyer. However, the chances of success are slim.
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