Time tracking 2026: What employers and employees need to know now

Since the ruling of the Federal Labor Court (BAG) on September 13, 2022, it has been established that employers in Germany are already obligated to systematically record the working hours of their employees. Nevertheless, many companies ignore this obligation, often out of ignorance, sometimes deliberately. This can result in substantial fines and significant consequences under labor law.

What does the obligation to record working hours mean?

The obligation to record working hours requires employers to document the start, end, and duration of daily working hours. This applies to all employees – regardless of whether they work in the office, from home, or on a construction site. Part-time employees and those in marginal employment (minijobs) are also subject to this obligation.

The purpose of this regulation is to ensure compliance with statutory maximum working hours, break regulations, and rest periods. The Working Time Act (ArbZG) stipulates that daily working time should not exceed eight hours – with certain exceptions, a maximum of ten hours. Without systematic time tracking, compliance with these requirements simply cannot be verified.

The 2022 Federal Labor Court ruling: What employers already have to do today

In its decision of September 13, 2022 (Case No. 1 ABR 22/21), the Federal Labour Court clarified that Section 3 Paragraph 2 No. 1 of the Occupational Health and Safety Act (ArbSchG) establishes a general obligation for employers to record working hours. This obligation already exists – regardless of whether a separate law on recording working hours has entered into force or not.

The Federal Labor Court (BAG) clarified: Employers must implement a system for recording the working hours performed by their employees. This system must be objective, reliable, and accessible; it must be tamper-proof and reflect the actual hours worked.

ECJ ruling as a starting point

The basis for the Federal Labour Court's (BAG) ruling was the widely noted European Court of Justice (ECJ) judgment of May 14, 2019 (Case C-55/18). The ECJ had ruled that the EU Working Time Directive obliges member states to require employers to implement a time recording system. The BAG transposed this European requirement into German occupational health and safety law, thereby enshrining the obligation in German law.

The current state of legislation: The Working Time Recording Act is coming – but when?

Politicians reacted to the Federal Labor Court ruling, albeit initially hesitantly. A first draft bill from the Federal Ministry of Labor in spring 2023 proposed a legal specification of the obligation to record working hours. With the end of the coalition government, this draft was shelved for the time being.

The new German government will revisit the issue in 2026: As part of a planned working time reform, electronic time tracking is to be enshrined in law as the standard. At the same time, greater flexibility is to be made possible: Instead of the current maximum daily working time, a weekly perspective should be possible, at least within the framework of collective bargaining agreements. This opens up new possibilities for employers and collective bargaining parties.

What requirements must a time tracking system meet?

According to current case law, the time recording system must meet certain minimum requirements:

• Objectivity: The system must accurately reflect the actual hours worked, including overtime.

• Reliability: Manipulation by the employer or employees must be ruled out.

• Accessibility: Employees must be able to view their recorded working hours at any time.

• Documentation: The records must be available and traceable for inspections by the responsible occupational safety and health authorities.

The exact form in which time recording is to be carried out has not yet been definitively regulated. Digital systems, apps, or even paper forms are all generally acceptable, provided the aforementioned requirements are met. The planned reform of working time regulations will likely mandate electronic recording as the standard practice.

What are the consequences of violations? Fines of up to €30,000.

The consequences of missing or incomplete time tracking are significant. Even under current law, violations of existing documentation obligations, such as those stipulated in Section 17 of the Minimum Wage Act (MiLoG) for minimum wage employment, can be punished with fines of up to €30,000. If a separate law on time tracking is introduced, comparable or even higher penalties are to be expected.

Furthermore, there is a significant risk of labor law disputes: employees can sue for overtime worked in labor court. Without a comprehensive time tracking system, employers often lose such cases, as the absence of such a system can be interpreted as obstruction of evidence and effectively shift the burden of proof to the employer's disadvantage.

What employees should know about their time tracking

This issue is also of central importance for employees. Recorded working hours are the best proof of overtime worked and thus the basis for corresponding compensation claims. Anyone who regularly works more than contractually agreed should insist that this extra work be systematically documented.

If an employer refuses to implement accurate time tracking or if existing systems are manipulated, affected employees can contact the relevant occupational health and safety authority or take legal action. Involving the works council is also a sensible first step: According to Section 87 Paragraph 1 No. 6 of the German Works Constitution Act (BetrVG), the works council has a right of co-determination regarding technical equipment for monitoring performance and conduct, which includes time tracking systems.

The planned reform: weekly working hours instead of maximum daily working hours

One of the most significant changes in the planned working time reform concerns the restructuring of working time limits. Currently, the general maximum daily working time is eight hours, which can be extended to ten hours in exceptional cases. In the future, a maximum weekly working time will be possible as a reference point, at least within the framework of collective bargaining agreements.

This would allow employees to work longer hours on some days, provided they work correspondingly shorter hours on other days. For employees, this means greater flexibility on the one hand, but also an increased risk that overwork will be masked by clever weekly planning. In this context, comprehensive time tracking becomes even more important to protect one's own interests.

Our advice: Act now – don't wait for the law to change.

The obligation to record working hours already exists; the Federal Labor Court (BAG) has made this unequivocally clear. Companies that have not yet implemented a system should act now to minimize legal risks. Waiting for future legislation is not a strategy: the risks of administrative offenses and liability are real and already in effect.

Do you have questions about time tracking, overtime claims, or legally compliant implementation in your company? Attorney Roman Philipp Tabeau, based in Berlin-Zehlendorf, offers expert and personalized advice – for both employees and employers. Call us at +49 30 8238020 or email us at ra-zehlendorf@outlook.de. We look forward to your inquiry.