Employment Law2026-10-22

Recording working time: what you must do since the Federal Labour Court's ruling, and what you need not

Since 2022 every employer has had to record the start, end and duration of working time. The form is free, and trust-based working time remains possible. What the law requires, what a breach costs, and what counts in an overtime claim.

Many businesses still do not record working time at all, or record only the overtime. Since the Federal Labour Court’s decision of September 2022, this is no longer a matter of preference but a duty that applies to every employer, whatever the size of the business. At the same time, a number of claims have grown up around this duty that simply are not true: that the time clock is back, that trust-based working time is banned, that fines loom unless you install an electronic system. Here is what you as an employer must do, and what you need not.

In short

Under section 3(2) no. 1 of the Occupational Safety and Health Act (ArbSchG) you are obliged to introduce a system that records the start and end, and therefore the duration, of your employees’ daily working time, including overtime. The Federal Labour Court derived this from the statute in its ruling of 13 September 2022, giving effect to a 2019 decision of the European Court of Justice. The form is free: paper, a spreadsheet or an app, provided the record is reliable. You may delegate the recording to your employees, but you remain responsible for seeing that it happens. Trust-based working time remains possible, just not without a record. For mini-jobbers and certain sectors, the stricter recording duty under section 17 of the Minimum Wage Act (MiLoG) applies alongside this; for work beyond eight hours a day, the duty under section 16(2) of the Working Hours Act (ArbZG) applies. A change in the law has been announced, but as at October 2026 it has not been enacted.

The legal position

The duty and where it comes from. In 2019 the European Court of Justice held that the Member States must require employers to set up an objective, reliable and accessible system that measures the daily working time of each worker (ECJ, judgment of 14 May 2019, C-55/18, curia.europa.eu). The German legislature did not respond at first. The Federal Labour Court closed the gap: section 3(2) no. 1 ArbSchG, which requires the employer to put in place a “suitable organisation” for occupational safety, must be read in conformity with EU law as requiring the recording of the start and end, and therefore the duration, of working time, including overtime. Because this duty already exists, the works council has no right to compel the introduction of time recording on its own initiative; the “whether” no longer needs to be negotiated (Federal Labour Court, ruling of 13 September 2022, 1 ABR 22/21, bundesarbeitsgericht.de). The “how” is subject to the works council’s co-determination, where there is one, under section 87(1) nos. 6 and 7 of the Works Constitution Act (BetrVG).

What has to be recorded. The start, end and duration of daily working time, including overtime, for each worker. Breaks follow from the difference, provided you also record the start and end of breaks; because section 4 ArbZG prescribes rest breaks, their duration belongs in the record. What is not required is recording in real time, nor an electronic system, nor the policing of every single minute. What is required is that the record is actually kept and that you can inspect and review it.

How you may record. The Federal Labour Court leaves the form open: a paper timesheet will do, a spreadsheet will do, an app will do. You may delegate the recording to your employees; you remain responsible. That means the records must come together with you, you must check on a sample basis that they are being kept, and you must step in where the maximum working hours or rest periods under sections 3 and 5 ArbZG are being breached. Trust-based working time is compatible with this: the employee decides when to start and finish, but records it. What is no longer possible is trust-based working time without any record at all.

The stricter duties alongside. For mini-jobbers under section 8(1) of the Social Code, Book IV (SGB IV), and for workers in the sectors listed in section 2a of the Act to Combat Illicit Work (SchwarzArbG) — for example construction, catering, haulage, building cleaning and the meat industry — section 17(1) MiLoG requires the start, end and duration of daily working time to be recorded by the end of the seventh following calendar day at the latest and kept for two years. Mini-jobs in private households are excepted (section 8a SGB IV). Independently of this, section 16(2) ArbZG requires working time beyond eight hours on a working day to be recorded and the records kept for two years. Both of these duties carry fines and are enforced by Customs and by the trade supervisory authorities.

What a breach costs. The duty under section 3(2) no. 1 ArbSchG does not in itself carry a fine; a fine arises under section 25 ArbSchG only once the supervisory authority has issued an order and you fail to comply with it. It becomes more expensive through section 16(2) ArbZG and section 17 MiLoG, breaches of which are regulatory offences in their own right (section 22 ArbZG, section 21 MiLoG). And it becomes most expensive of all in an overtime claim.

The overtime claim. An employee who wants overtime paid must show that he worked beyond the agreed hours and that you ordered, approved or tolerated the overtime, or that it was necessary to get the work done. The European Court of Justice’s decision changed nothing in this respect: the allocation of the burden of pleading and proof in a pay claim remains, even where the employer keeps no time records (Federal Labour Court, judgment of 4 May 2022, 5 AZR 359/21, bundesarbeitsgericht.de). Without records of your own, however, you are left with no rebuttal: if the employee puts forward a plausible schedule, you can only counter it with data of your own. Time recording is therefore also your protection.

Where the legislation stands. In 2026 the Federal Ministry of Labour and Social Affairs put forward a draft bill to amend the Working Hours Act that would regulate the recording duty expressly and allow a weekly rather than a daily maximum working time. As at October 2026 this draft has been neither adopted by the Cabinet nor debated in the Bundestag. Until there is a change, what is set out above applies; check the current position before buying a system tailored to the draft.

Deadlines

The recording duty has applied since the Federal Labour Court’s ruling, that is, since September 2022; there is no transitional period. For section 17 MiLoG, the seven-day deadline for recording and the two-year retention period apply. Section 16(2) ArbZG likewise requires two years’ retention. Pay claims for overtime are subject to the three-year limitation period under sections 195 and 199 BGB and, where agreed, to the shorter forfeiture periods in the employment contract or collective agreement, typically three months. You should therefore keep records for at least three years, not just two.

How to proceed

Take stock. Which employees currently record what? Are there mini-jobbers or a sector under section 2a SchwarzArbG? Is there a works council?
Choose a system. For small businesses, a spreadsheet with date, start, end, break, total and a weekly signature is enough. For larger ones, an app with sign-off by the line manager.
Settle responsibility. Who enters the data, who checks it, who steps in? Set it out in writing as a work instruction, or, where there is a works council, as a works agreement.
Adjust trust-based working time. The arrangement stays, but gains a clause that the employee records the start, end and breaks himself and submits them weekly.
Review. Check monthly for maximum working hours, rest periods and the overtime balance. Raise and document anything that stands out.
Retain. For at least three years, protected against alteration.

Example

An engineering firm with twelve employees has worked with trust-based working time for years and records nothing. A former employee claims payment for 310 hours of overtime over the past three years and produces an Excel list which, by his account, he kept as he went along. The firm has nothing to set against it: no record, no order, no refusal. The employee does have to show that the overtime was tolerated, but his account — that the managing director knew about the long evenings — stands unchallenged. The case ends in a settlement for half the sum. Afterwards the firm introduces a spreadsheet: each employee enters the start, end and breaks every day, and the managing director signs off the week. Trust-based working time stays; the dispute over overtime is, in future, a question of the spreadsheet, not of memory.

Common mistakes

Recording only overtime. Section 16(2) ArbZG requires that; section 3(2) no. 1 ArbSchG requires the whole of working time.
Delegating and not looking. Recording by employees is allowed, but the checking remains your duty.
Forgetting mini-jobbers. For them section 17 MiLoG applies, with its seven-day deadline, and that is precisely what Customs checks.
Abolishing trust-based working time. No one is asking for that; the record is enough.
Waiting for the new law. The duty applies today; the draft changes nothing about that.
Bypassing the works council. It has co-determination over the design of an electronic system under section 87(1) no. 6 BetrVG; without its involvement it can have the use prohibited.
Deleting records after two years, even though overtime claims are time-barred only after three.

Frequently asked questions

Is an Excel spreadsheet or a timesheet enough?

Yes. The Federal Labour Court left the form open. What matters is that the start, end and duration of daily working time are recorded reliably and that you can access them. An electronic system is not required under the law as it stands.

Is trust-based working time still allowed?

Yes. Trust-based working time means that the employee decides for himself when and how to spread his working time. That remains permissible; what is new is that he records the time and you check the record.

May employees record their own time?

Yes. Delegating the recording to employees is permissible. The responsibility for seeing that it happens, and that the limits of the Working Hours Act are observed, remains with the employer.

Do I face a fine if I don’t record?

Not directly under section 3 ArbSchG; there, a fine requires a prior order from the supervisory authority. What carries fines directly are breaches of section 16(2) ArbZG and, for mini-jobbers and the sectors under section 2a SchwarzArbG, breaches of section 17 MiLoG.

Do I have to have time recorded when working from home too?

Yes. The duty does not depend on where the work is done. When working from home, recording by the employee himself is the usual route; a spreadsheet or app that he keeps daily is enough.

Your next step

Time recording can be set up in an hour, once it is clear who enters what and when, and who checks it. I will look at what you keep today, tell you whether it meets the requirements of the Occupational Safety and Health Act, the Working Hours Act and the Minimum Wage Act, and draft the work instruction or works agreement to go with it — nationwide, by video or by telephone. You can read how I represent employers in employment law on my practice-area page. Tell me how you record working time today; I will tell you whether it is enough.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-22.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me how you record working time today and I will say whether that is enough.

I read every message myself and usually reply on the next working day. What you write to me is covered by legal professional privilege from the first word, even if no engagement comes about. The initial assessment is free of charge.