Millions of people stamp. Every morning, every evening, they stick their card into a time clock or hold their chip in front of a reader and record their working hours. This happens above all where people work in shifts and linearly over eight hours, for example in factories or in the public sector. For a long time, representatives of some industries thought this was old-fashioned, and some even made fun of it. In many areas, the “trust-based working time” applies instead – especially where work is irregular: in agencies, in science or in modern medium-sized companies.

Since 2019 at the latest, however, it has been clear that trust-based working hours have their limits. The employers have to document the hours worked, the European Court of Justice said at the time. The so-called “time clock judgment” is now considered historic. Since then, however, not much has happened in Germany. The Federal Labor Court (BAG) confirmed the judgment at the end of 2022. But only now, thanks to a draft from the Federal Ministry of Labor, is it clear how the Federal Government envisages the implementation of the judgement.

The draft is strictly based on the guidelines set by the BAG. Accordingly, the federal government allows employers to also record working hours electronically. Paper and pen are not necessary, but possible. On the other hand, collective bargaining and company parties should be able to agree on exceptions – for example for employees in science. Trust-based working hours are therefore still possible – but companies must create the technical possibilities to record working hours.

According to the draft law, employers must “electronically record the beginning, end and duration of the daily working hours of the employees” on the respective working day. Previously, this only applied to overtime and Sunday work. The employees could document their working hours themselves, but this could also be done “by a third party”, for example a supervisor. This also applies to civil servants. Ultimately, the employer is responsible for ensuring that working hours are properly recorded. Employees can also request the information collected.

The Ministry of Labor does not want to prescribe a specific type of electronic recording. In addition to the time recording devices that are already in use, other forms of electronic recording with the help of electronic applications such as apps on a mobile phone could also be considered, according to the draft. Collective recording of working hours is also possible through the use and evaluation of electronic shift schedules – if the start, end and duration of the daily working hours can be derived from this.

Philipp Neddermeyer, Managing Director and Attorney at AGA Norddeutscher Firmenverband, thinks the options are basically good – but at the same time dampens hopes. “The word ‘electronic’ alone does not mean that it works better or even smoothly. Many companies are currently experiencing this with the introduction of the electronic certificate of incapacity for work,” Neddermeyer told Capital.

According to the draft, the possibility of trust-based working hours should not be impaired by the obligation to record working hours. This means a flexible working time model in which the employer does not specify the start and end of the contractually agreed working time.

Employers tend to give the draft poor marks. Oliver Zander, general manager of the employers’ association Gesamtmetall, called it a “scary catalog” of bureaucracy, contradictions and refusal to make progress.

Philipp Neddermeyer told Capital: “The draft law on electronic timekeeping further tightens the bureaucratic corset for companies. However, it is to be welcomed that the draft provides a certain amount of leeway and exceptions in order to make timekeeping flexible according to company size and area of ​​activity In other words, it could have been worse.”

Left-of-centre politicians largely welcome the draft. Left labor politician Susanne Ferschl explained that recording working hours is an effective tool for health protection and against wage robbery. That’s why there shouldn’t be any exceptions.

The unions do not want to finally evaluate the draft. When asked by Capital, individual organizations such as IG Metall, NGG and IGBCE refer to the umbrella organization DGB. Discussions behind closed doors make it clear that there is still no unanimous opinion on Heil’s proposal on the union side: Some see the draft as an opportunity for co-determination, while others say that Heil is partially shifting the work off to the unions.

The Confederation of German Trade Unions had already described the finding of the Federal Labor Court on the recording of working hours as long overdue last September. Board member Anja Piel is now criticizing the concrete implementation in relation to Capital. “We refuse to touch the Working Hours Act. We need an update to counteract the delimitation of work – ideally by regulating the obligation to record working hours in the Occupational Safety and Health Act.”

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