BAG Ruling 1 ABR 22/21 — Mandatory Time Recording

What was decided

The German Federal Labor Court (BAG) ruled in case 1 ABR 22/21 that German employers are required under § 3 (2) no. 1 ArbSchG (Occupational Safety Act) to introduce a system for capturing the working time of their employees systematically, objectively and reliably.

Background: from EuGH to BAG

The BAG ruling implements the European Court of Justice judgment of 14 May 2019 in case C-55/18 (CCOO) into German law. The EuGH had already ruled in 2019 that the EU Working Time Directive 2003/88/EC requires reliable recording — and the BAG made clear that this applies in Germany now.

Concrete obligations for employers

• Introduce a system to record start, end and duration of each working day
• Recording must be systematic — not occasional
• Recording must be objective — not pure self-declaration
• Recording must be reliable and accessible
• Records must be retained for at least 2 years

Penalties for non-compliance

• Fines under § 22 ArbZG up to €30,000
• Fines under § 21 MiLoG (for affected industries) up to €500,000
• Individual employee claims for proof of working hours
• Findings by Customs (FKS) checks for undeclared work
• Conflicts with works council / arbitration committees