Will digital time recording become mandatory for merchants in 2023?

When you hear time tracking in trades, you usually think of a timesheet or report sheet filled out by the trader and then filed manually. In some companies, working time is not recorded at all and there are rumors that digital time recording will soon become mandatory.

The reason for this fear is a ruling by the European Court of Justice. On 14 May 2019 the court decided that time recording must be carried out within certain and verifiable frameworks and reference was made to various points already required by law. However, their implementation currently fails, especially in Germany, which is why a feasibility test was initially carried out. The ruling was preceded by a lawsuit brought by Spain’s largest trade union (CCOO) against the Spanish branch of Deutsche Bank. For example, overtime is limited to certain maximum values ​​and without detailed time recording in operations, exceeding these cannot be reliably prevented. This applies to Germany, Austria and Switzerland. For Switzerland, the precise provisions can be found in the Working Time Act and the Working Rest Act.

There is currently no obligation to record time and it was initially examined whether digital time recording is technically possible in the craft sector. Furthermore, the feasibility was examined, among other things, with regard to the financial burden for the respective companies. The Central Association of the German Construction Industry (ZDB) expressed relief at the failure to introduce compulsory time recording: «We managed to avoid electronic monitoring of working hours on all construction sites. This would have represented a major bureaucratic obstacle for our companies. Thank you very much!». The current bill provides for the introduction of a time recording obligation, but it is not yet possible to predict when the regulatory change will come into force.

Even if there is not yet a general requirement for purely digital (!) time recording in commerce, there are already requirements for general working time recording that must be respected. Not all traders are aware of the official rules, which is why violations can occur unconsciously. Among other things, work on Sundays and holidays and overtime exceeding 48 hours per week must be recorded. Furthermore, the rules relating to rest periods must be respected:

• after 6 hours a 30 minute break
• after 9 hours a 45 minute break
• a break of 11 consecutive hours between two working days
• a break of at least 24 consecutive hours within 7 days

The way these times are recorded is currently handled differently, typically classic timesheets are used. These are compiled manually and stored and/or digitized centrally. This method carries many risks as errors can quickly occur which can be to the detriment of everyone involved. Furthermore, all information must be verified, which in turn costs time and money.

Legal basis: Working Time Act (ArbZG), paragraph 16

The Working Time Act establishes the general legal framework for Germany. The terms are defined in the first section: «Working time under this Act is the time between the beginning and the end of work, excluding breaks; the working hours of several employers shall be added.» Without time recording it is therefore not possible to reliably record the degree of compliance with rest breaks.

Section 3 “Working hours of employees” also states that working hours on a working day cannot exceed eight hours. Temporary changes of up to ten hours are only permitted if the average working time does not exceed eight hours over six calendar months or within 24 weeks.

§16 The ArbZG already obliges employers to record working time exceeding eight or ten hours on weekdays. The obligation to register therefore only exists if eight hours of work are exceeded and the employer can decide how to carry out this registration. These times must be archived for at least two years and presented upon request of the competent authorities. The situation is similar in Austria and Switzerland, working hours must be recorded, but there are no regulations on how to do this. The classic timesheet can also be found here as an alternative to digital time recording.