Working Time Records

The BAG Decision

This is not legal advice. It is a summary of a published decision.

The most consequential development in German working time law arrived in a case about something else, and it took a paragraph of occupational safety legislation to get there. For a practical view of how organisations can translate recording duties into day-to-day workflows, see Microsoft Teams activity tracking.

Reviewed August 9, 2026.

What happened

Federal Labour Court (Bundesarbeitsgericht), case 1 ABR 22/21, decided 13 September 2022. Full written reasons published 2 December 2022. For broader legal or policy context, see Reuters.

The proceedings concerned a works council's claim to a right of initiative on introducing electronic time recording — a co-determination question. In deciding it, the court addressed whether an employer is already obliged to record working time at all.

It held that they are.

The reasoning, in outline

§3(2)(1) of the Occupational Health and Safety Act (ArbSchG) requires employers to provide a suitable organisation and the necessary means for occupational health and safety.

Read in conformity with European law — specifically the EU Working Time Directive as interpreted in CJEU case C-55/18 — that provision requires a system for recording the working hours performed by employees.

So the duty existed already, in a law that had been on the books for years, and no new legislation was required to create it.

Why this surprised people

Because nobody legislated it. The German Working Hours Act (ArbZG) required documentation only of overtime and Sunday work, not of total hours. Everyone was waiting for the legislature to act on the CJEU ruling, and the legislature had not.

And because the route is indirect. A duty derived from occupational safety law, via a conforming interpretation, in a case about works council rights, is not where anybody was looking.

The practical effect is the same as a statute. The obligation binds now, and it has bound since the decision.

What the decision does not say

The part that gets overstated.

It does not require electronic recording. The court's reasoning does not impose a particular medium. Paper remains permissible under the current position.

It does not specify a format, a retention period or a technical standard. Those questions are addressed by other provisions and by the draft reform.

And it does not create a transition period. There is none. The duty applied from the decision.

Material that attributes an electronic-recording requirement to this decision is wrong, and it is common — usually in pages published by companies selling electronic systems.

What it means for a works council

The question the case was actually about.

The decision addressed the works council's right of initiative in this area. Where a duty exists as a matter of law, the scope for co-determination on whether to record differs from the scope on how. The practical consequences for works agreements are a separate subject and one where a lawyer is genuinely necessary.

How to cite it

"BAG, 13 September 2022, 1 ABR 22/21", and if you are describing the reasoning, "§3(2)(1) ArbSchG, interpreted in conformity with CJEU C-55/18".

That formulation is checkable. A claim that says "the courts have ruled" without it cannot be verified, and in this field a substantial share of published claims are exactly that.

The short version