Other obligations

• Keeping evidence of working time
• Exceptions to the obligation to maintain working time records
• Form of the working time records
• Simplified record-keeping of mobile avtivities
• Keeping documents ready for inspection

Keeping evidence of working time

Under certain conditions, both employers domiciled in Germany or abroad and users of workers‘ services who engage workers supplied by a temporary employment agency are under the obligation to record the beginning, end and duration of the workers‘ daily working times, not later than by the end of the seventh calendar day following the day on which the relevant work was performed. These records must be kept for at least two years from the date relevant to the record. These obligations exist under the following conditions:

• Employers domiciled in Germany and/or abroad

  • who employ workers in any of the economic sectors or branches listed in Article 2a of of the Act to Combat Unreported Employment (Schwarzarbeitsbekämpfungsgesetz - SchwarzArbG) (cf. Art. 17 (1) of the Minimum Wage Act), or
  • who come within the scope of the Posted Workers Act (cf. Art. 19 (1) (Arbeitnehmer-Entsendegesetz - AEntG))
• Employers domiciled in Germany who engage workers in any minor (geringfügig) employment within the meaning of Article 8a of the German Social Code’s volume IV (Sozialgesetzbuch - SGB IV) (with the exception of private households),

• Users of workers‘ services who engage the workers supplied by a temporary employment agency

  • in any of the economic sectors listed in Article 2a of the Act to Combat Unreported Employment (cf. sentence 2 in Art. 17 (1) Mindestlohngesetz - MiLoG),
  • in jobs that come within the scope of the Posted Workers Act (cf. sentence 2 in Art. 19 (2) AEntG in conjunction with Art. 8 (3) AEntG),
  • if the employment relationship is subject to a legislative decree or ordinance issued in accordance with Art. 3a of the Act on the Provision of Temporary Workers (Arbeitnehmerüberlassungsgesetz - AÜG).

If hourly bonuses are to be granted on the basis of a collective agreement applicable under the AEntG, the beginning, end and duration of the working time giving rise to an entitlement to the bonus must also be recorded by the end of the seventh calendar day following the day on which the work was performed, stating the respective bonus, and must be kept for at least two years, starting from the time relevant to the record.

In accordance with Art. 6 (1) of the Act on Securing Labour Rights in the Meat Industry (Gesetz zur Sicherung von Arbeitnehmerrechten in der Fleischwirtschaft - GSA Fleisch), the obligations concerning the creation of documentary records set out in Art. 17 (1) MiLoG, Art. 19 (1) AEntG and Art. 17c (1) of the Act on the Provision of Temporary Workers (Arbeitnehmerüberlassungsgesetz - AÜG) have been amended in that both the employer and the supplier in the meat industry are under the obligation to record the beginning of an employee’s or hired worker’s daily working time immediately when starting work, and to record the end and total hours of that work still on the day when the relevant work ended.

Pursuant to section 6 (2) GSA Fleisch, daily working time also includes time which the employee needs for preparatory and follow-up activities in the company, insofar as these tasks are of benefit to the other party. In particular, these are times which the employee requires, including the necessary commuting times, for the following:

1. the setting up and dismantling of work equipment including the receipt and delivery of the work equipment (set-up times),
2. the putting on or taking off of work clothes, including the receipt and handing in of work clothes (changing times), if the wearing of specific work clothes is ordered by the employer or is required by law and the changing takes place in the company, and
3. washing oneself before starting or after finishing work (bathing times), if washing one-self is necessary for hygienic or health reasons.

This list is not exhaustive. A generalised record of set-up, changing or bathing times, for example based on empirical values or estimates by experts, is not permissible and may lead to a fine.

The provisions of section 6 of GSA Fleisch do not apply to establishments of the butcher's trade within the meaning of section 2 (2) GSA Fleisch.

Exceptions to the obligation to maintain working time records

Recording obligations pursuant to the Minimum Wage Act (beginning, end and duration of daily working times) are not required with regard to employees whose sustained pay exceeds a gross 4,319 euros a month, or whose sustained regular monthly pay exceeds a gross 2,879 euros provided that the employer can submit evidence of such payment for the past full twelve months (disregarding any times without entitlement to pay), as laid down in Section 1 of the Ordinance on Minimum Wage Documentation Obligations (Mindestlohndokumentationspflichten-Verordnung - MiLoDokV).
Working time records under both MiLoG and AEntG legislation may likewise be dispensed with where an employer’s spouse, registered life partner, child(ren) and/or parent(s) work in that employer’s operation. Where the employer is a legal person or a partnership with capacity to act in its own right, they are relieved from the notification obligation only in cases where the above family relationship exists with the organ (or a member of such organ) entitled to represent the legal person, or with an authorised partner in the partnership (cf. Section 1(2) MiLoDokV). Family members who are not under an employment contract and who engage in the operation’s affairs by virtue of their family relationship only are not deemed to be employees which is why they are not subject to the MiLoG and AEntG legislation nor to the recording obligations regulated thereby.
German-language documentation proving the eligibility of the above opt-out options shall be kept available in the domestic territory.

Form of the working time records

The working time records are in principle not bound to a specific form and can be kept both electronically and in writing. Only the beginning, end and duration of the daily working time must be recorded, but not the exact location and duration of the individual breaks. Where there are staff rosters which clearly define the beginning and end of work and the times and lengths of breaks, such as weekly schedules of the times and places of an individual worker’s assignment, the working time records may be copied from such schedules, and where appropriate amended to show any departures from the schedule. The above details must, however, always be included. Also, it must be evident that the records have been reviewed, and where exactly departures, if any, have occurred. Even if there were no departures, an informal note that the schedule has been reviewed must be added.

In accordance with the second sentence of Article 17(1) MiLoG, the second sentence of Article 19(1) AEntG, and Article 17c(1) of the Act on the Provision of Temporary Workers (Arbeitnehmerüberlassungsgesetz - AÜG), the same requirement shall apply to each user (hirer) who engages workers posted by an employment agency (supplier, or hirer-out), regardless of whether such user is established in Germany or abroad.

The above statements on the form of working time records do not apply to the meat industry. Pursuant to section 6 (1) GSA Fleisch, the obligations under section 17 (1) MiLoG, section 19 (1) AEntG and section 17c (1) AÜG are modified to the effect that employers and user enterprises in the meat industry are obliged to record working time electronically and in a tamper-proof manner and to keep this record electronically. The provisions of section 6 of GSA Fleisch do not apply to establishments of the butcher's trade within the meaning of section 2 (2) GSA Fleisch.

Simplified record-keeping of mobile avtivities

A simplified form of recording the working time, in which records only state the total hours worked on any particular day, is permitted under Section 1 of the Ordinance on Minimum Wage Reporting Obligations (Mindestlohnaufzeichnungsverordnung - MiLoAufzV) in cases where

• an employee’s work is exclusively mobile,
• employers do not specify a precise time for beginning or finishing work, and
• employee’s themselves take responsibility for managing their working hours.

This simplified form can therefore only be selected if employees are required to complete an assignment within a given timeframe but are free to organise their working time and idle time (breaks) as they deem fit. Only in such cases would it be sufficient to record the total hours worked on a given day without stating the starting or finishing times.

Simplified recording is not permitted for workers provided for temporary employment by suppliers.

Keeping documents ready for inspection

As required by Article 17 (2) MiLoG, Article 19 (2) AEntG, and Article 17c (2) AÜG, both employers domiciled in Germany and employers domiciled abroad must keep a German language version of the documentation required for demonstrating compliance with the terms of employment in accordance with MiLoG, AEntG and AÜG, available in Germany. In cases where remuneration is subject to the general provisions of the Minimum Wage Act only, the above obligation only concerns employers who contract workers in accordance with Article 8 (1) of Volume IV of the Social Code (SGB IV) (that is, workers in minor employment and mini-jobs) or else in the areas or sectors of the economy that are listed in Article 2a Act to Combat Undeclared Work and Unlawful Employment (SchwarzArbG) (cf. the notes further above).

Such documentation shall comprise:

• the employment contract and/or an equivalent document that defines the essential terms of the employment relationship (Directive 91/533/EEC on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship, Official Journal of the European Communities No. L 288/32 of 18 October 1991),
• time sheets which distinction between places of employment where regionally differing minimum levels of pay apply,
• pay slips and
• proof of payment of wages.

The four types of document listed hereabove must always be kept available for inspection in Germany. If circumstances require the presentation of any other documents, they shall also be made available to the inspection authority without delay.

Where mobile activities within the meaning of Article 2 (4) of the Ordinance on Minimum Wage Reporting Requirements (Mindestlohnmeldeverordnung - MiLoMeldV) are concerned, employers domiciled abroad are allowed to keep such documentation outside Germany if they have provided a written undertaking that they will make these documents, translated into German, available to the German Customs Administration in Germany upon request. Such documentation shall be supplemented by records of the work or services that have actually been performed during the notified period, and the German employers in each case (third sentence of Article 2 (3) MiLoMeldV).

Modified notification requirements

Insofar as employers invoke a flexibilisation of working hours, they must, in addition to the customary documents subject to inspection, also keep available in Germany:

• written agreement on flexible working hours,
• an adjustment or balancing account (for each individual employee) containing, where appropriate, separate working time records for "old/new" federal Länder,
• evidence (such as a bank guarantee or a blocked account) showing that the adjustment account has been secured to the extent required by the collective agreement and/or applicable ordinance.

Information on working time flexibilisation - Minimum wage pursuant to the Minimum Wage Act

Information about working time flexibilisation - Minimum wage pursuant to the AEntG, wage floor pursuant to the AÜG

The employer shall present the relevant records at the location of deployment, which in the case of construction services is the building site, if required to do so by the inspection authority.