The draft bill looks to clarify the rules, but uncertainties remain.


Since the much-discussed decision of the German Federal Labour Court of 13 September 2022 (1 ABR 22/21), employers have been obliged to record the working hours of their staff in Germany. Although the Federal Labour Court decided on specific aspects, such as the extent of the working time to be recorded, detail is still lacking. A “practicable proposal” on the recording of working time, which was announced by Federal Ministry of Labour and Social Affairs to be published in the first quarter of 2023, was therefore highly anticipated.

Instead, a draft bill on the amendment of the German Working Time Act (Arbeitszeitgesetz – ArbZG) was published. The draft implements the decisions of the German Federal Labour Court and the European Court of Justice from previous years on the recording of working time and introduces regulations on the concrete design of the recording of working time. However, the new provisions will only partially eliminate existing legal uncertainties for employers.

Essential new provisions 

The draft essentially contains the following new provisions in sec. 16 ArbZG:

  • The employer is obliged to electronically record the beginning, end and duration of daily working time on the day of work performance (sec. 16 para two ArbZG).
  • The recording of working time can be done by the employee himself or by a third party. The employer remains responsible for the proper recording of working time (sec. 16 para. three ArbZG).
  • In the event of recording of working time by the employee and if the employer waives the control of working time, the employer shall take appropriate measures to ensure that they become aware of violations of the ArbZG (sec. 16 para. four ArbZG).
  • The employer is obliged to inform the employee of the recorded working time upon request and to provide a copy of the records (sec. 16 para. five ArbZG).
  • Records of working time shall be kept by the employer in German for the entire duration of the employees’ actual employment, at least for the duration of the entire work or service, but not longer than two years in total. At the request of the supervisory authorities, records of working time must be kept available at the place of employment (sec. 16 para. six ArbZG).


An infringement of the obligation under the amended sec. 16 para. two, five and six does directly result in a fine of up to €30,000.00.

Method of electronic recording 

The draft does not provide for a specific method of how electronic recording should be carried out. In addition to the time recording devices already in use, other types such as apps on mobile phones or the use of conventional spreadsheet programmes are considered suitable. Collective recording of working time through the use and evaluation of electronic shift schedules is another possibility to record working time.

Delegation to employees 

The employer is allowed to delegate the recording of working time to the employees. However, as the employer remains responsible, they should explicitly instruct employees to properly record their working time and monitor this by carrying out spot checks. This approach will ensure the employer is able to partly justify themselves to the occupational health and safety authority in the event of a breach of the recording obligation. The occupational health and safety authority shall consider the extent to which the breach of the record-keeping obligation is solely caused by the employees.

Trust-based working time 

A trust-based working time (Vertrauensarbeitszeit) with free planning of time allocation can still be agreed. Staff can continue to determine the start and end of work themselves. However, the employer must ensure they become aware of violations of the provisions of the ArbZG (eg, on the maximum permissible working hours or on the uninterrupted rest period after the end of the daily working time). This can be achieved, for instance, by an automatic warning message from the electronic time recording system.

Exceptions to the obligation to record working time 

  • The obligation to record working time electronically does not apply to employers with up to ten employees and to employers without an operating site in Germany if up to ten employees are seconded to Germany (sec. 16 para. eight ArbZG).
  • In addition, the draft contains an opening clause, according to which the agreement of deviating regulations in a collective bargaining agreement, on the basis of a collective bargaining agreement in a works council agreement is possible (sec. 16 para. seven ArbZG). In these agreements, the non-electronic recording of working time, the day on which working time shall be recorded and certain groups of employees can be exempted from the recording obligation. This shall be possible for employees who can decide on the scope and allocation of their working time themselves (eg, managers, scientists and experts).


The adaptation of the ArbZG to the requirements of the modern working world, which has been hoped for years, has failed to materialise. However, it was probably not to be expected in the short time since the decision of the Federal Labour Court in September last year.

Unfortunately, the draft does not resolve all uncertainties in the adjusted areas. The question of which employees’ working time must be recorded was not clarified. Whether executive employees (leitende Angestellte) within the meaning of the German Works Constitution Act (Betriebsverfassungsgesetz) are also subject to the obligation to record working time was controversially discussed before. Based on the current draft the exception in sec. 18 ArbZG would still be applicable and the obligation to record time would not apply to them. In addition, it is likely there will be difficulties in determining which employees can be completely exempted from the obligation to record working time in collective agreements. The cited examples (managers, scientists and experts) provide scope for interpretation.

Furthermore, the draft does not provide for any specific regulations on rest and break times with regard to the obligation to record time. While breaks probably do not have to be recorded and thus cannot be supervised, compliance with the rest period can be derived from the recorded working hours. In this respect, some clarification by the legislator would have been useful. The draft also does not contain any provisions on special forms of work such as mobile working or working from home.


Nevertheless, employers should deal with the new provisions swiftly, as the amendments of the ArbZG shall come into force at the beginning of the quarter following its promulgation and action is already required from this point on. The beginning, duration and end of working time must be recorded by the employer as soon as the new law comes into force.

The draft merely provides a transitional regulation according to which employers are granted an implementation period for the introduction of a system for the electronic recording of working hours. All employers may also record working time non-electronically for up to one year after the amendments enter into force. Employers with fewer than 250 employees are granted an implementation period of two years, employers with less than 50 employees have an implementation period of five years.

Moritz Kunz
Moritz Kunz
Partner, Germany
+49 692222 82501
Anja Lingscheid
Anja Lingscheid
Counsel, Germany
+49 692222 82504
Simone Ziegler
Simone Ziegler
Senior Associate, Germany
+49 69 2222 82502
Majaani Hachmeister
Majaani Hachmeister
Associate, Germany
+49 69 2222 82534