Ms. Knuth, from when does the ruling of the Federal Labor Court (BAG) apply?

The obligation titled by the BAG applies with immediate effect. Since the BAG has decided that the obligation to record working hours follows directly from the Occupational Health and Safety Act, there is no longer any need for an act of the legislature to make it binding. This is an objective legal obligation for all employers to act.

Nevertheless, the German Federal Ministry of Labor and Social Affairs announced back in September that it would be putting the BAG's decision into law and specifying the requirements for time recording. According to its own statement, it intends to make a practical proposal for the formulation in the Working Time Act in the first quarter of 2023.

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Do employers who do not comply with the ruling have to fear consequences?

Currently, the non-introduction of a time recording system does not yet have any direct consequences, i.e. it is not subject to penalties or fines. This is because a violation is not covered by the corresponding penal and fine provisions of the Occupational Health and Safety Act.

However, as already mentioned, the Federal Ministry of Labor and Social Affairs intends to implement the BAG decision in law, and a corresponding tightening of the penalties and fines is to be expected. All employers are therefore already advised to consider the introduction of a time recording system.

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What exactly does "introduction of a system for recording working time" mean?

The obligation to record working time includes the introduction of a time recording system (if not already in place), the implementation of this system in the company and the control that the system is applied by the employees. 

The actual working time of the employees must be recorded in concrete terms. This means recording the start and end, i.e. the duration of the working time, including break times and any overtime worked. It is not sufficient that the employer merely allows his employees to use the system.

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Is the possibility of trust-based working time now passé?

No, trust-based working time remains possible. Trusted working time is a working time model which is characterized by the employee's largely autonomous allocation and scheduling of working time, combined with a waiver of working time control by the employer, who is only interested in the work result. The decision of the BAG now means that employers can no longer completely refrain from recording the working time of employees who work on a confidential basis. The start, end and duration of their work must also be recorded. This is made possible by delegating the recording of working time to the employees, which the BAG has expressly deemed permissible.

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The last question: are there any exceptions to the obligation to record time?

In its decision, the BAG extended the obligation to record time to the working hours of all employees. However, it also emphasized that the legislator is free to provide for exceptions to this obligation. In particular, exceptions could apply to employees whose working time is difficult to measure or predict due to the special characteristics of their work. Special regulations would then be possible, for example, for chief physicians or executive employees. A legal regulation in this regard remains to be seen.

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Thank you for your detailed assessments of the legal implications of the BAG ruling on time recording.