MIn mid-September, the Federal Labor Court ruled that employers must record the working hours of their employees – a judgment that raised questions for both sides: What exactly is mandatory and what is a recommendation? What are the deadlines? And above all: How does it change working life? In the meantime, the court has published the reasons for its decision at the time and has thus shed light on the matter.
Companies must actually record the location, start, duration and end of working hours, a time recording system alone is not enough and there is no transitional period, says Michael Fuhlrott, professor and specialist lawyer for labor law, summarizing the most important details. There are no specifications regarding instructions or form, i.e. whether manual or electronic time recording; the employer can decide and has some leeway, he explains further.
Participation of the works council in the design of time recording is mandatory, but there is no so-called right of initiative for the works council to introduce time recording. So that it is introduced is not negotiable, only the “how” can be discussed.
Trust-based working hours are still possible – but under certain conditions: “If this means self-determined work with free personal planning of time, this will continue to be possible. If trust-based working hours mean working without any time recording, this will no longer be possible in the future,” explains labor lawyer Fuhlrott. “You can’t get around the time recording”. For him, this means: “Companies will have to create and set up time recording systems in a timely manner. This obligation applies to companies of all sizes. There are no exceptions for small businesses after the decision.”
Association for executives cheers
Many companies found the question of whether the regulations must also apply to managers particularly exciting. According to the reasoning of the BAG, this is not the case; Managers are exempt from the obligation to record, says Fuhlrott.
The German Management Association (ULA) is happy that its clientele can be spared the obligation to record their time. “From the point of view of the German Association of Executives, this clearly affects senior staff because of the specific exemption from the Working Hours Act,” says a statement. The legislature is now obliged to regulate this for clarification. Key word: time recording obligation from the Occupational Health and Safety Act. It is important “to take the judgment into account and not, as is so often the case, to tighten national EU regulations through the back door,” said ULA President Roland Angst.
Working time sovereignty for non-tariff employees is still possible. They only have to record their working hours. This means that trust-based working hours are still possible. “To lump all employees together without considering the function and type of work would have been unworldly,” said Angst. “The court has confirmed our legal opinion.”
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