Happy Easter with supplements
Are regulations for the recording of working time finally coming?
German companies need clarity
Are regulations for the recording of working time finally coming?
Introduction
As part of its decision of 13 September 2022 (Case No. 1 ABR 22/21), the Federal Labour Court (FOPH) stated that the recording of working time is already mandatory under German law to protect employees.
In doing so, the FOPH essentially refers to the ruling of the ECJ of 14 May 2019 (ECJ Case 55/18 CCOO), which concerned the interpretation of the European Working Time Directive (2003/88/EC). We also reviewed this judgment in blog article (read more at https://rickert.law/verpflichtung-des-arbeitgebers-zur-systematischen-arbeitszeiterfassung/).
The ECJ had ruled that employers are obliged to set up an objective, reliable and accessible system to record the working hours of their employees. EU member states are required to implement this obligation and to regulate details.
What about Germany?
In Germany, no steps have yet been taken. Therefore the FOPH lends weight to the ECJ ruling and urges politicians to finally create legal certainty for German companies through suitable regulations. What is new, however, is that the FOPH states, there already is an obligation for employers to record working time in Germany because section 3 (2) no. 1 of the ‘Safety and Health at Work Act’ is to be interpreted in the light of EU law.
Even so in its reasons for the judgement, published last December, the FOPH did not yet make any substantive specifications for future regulations. It was still left open whether the system should be digital or analogue.
In addition, the FOPH clarified that the documentation of working hours can be delegated to the employees themselves, which is interesting, for example, regarding home office work. Premature conclusions or fears of the end of trust-based working hours are therefore unfounded. Rather, the FOPH emphasises that the sole purpose of recording working time is to protect employees: to prevent them from working too much and not taking periods of rests.
The Federal Ministry of Labour has announced that it expects to present a proposal for the design of working time recording in the Working Time Act in the first quarter of 2023. So far, the Working Hours Act only stipulates the recording of overtime and work on Sundays and public holidays.
Conclusion
It is advisable for employers to promptly set up a corresponding recording system now or at least take a closer look at practicable models. At least so far, there is no need to fear a penalty for failing to set up such a system.
Employee data protection: What is a boss allowed to do?
The core statement of the GDPR regarding employee data protection according to §26 BDSG and the handling of special situations
Employee data protection: What is the boss allowed to do?
Introduction
Employee data protection: It is about the monitoring of employees. How far may it go, where are the limits and which law regulates it. In other words: what is the boss allowed to do?
There is still no law of its own, but there are numerous regulations that provide pointers. Negotiations toward a uniform employee data protection law are underway again, however, after the last draft from 2010 was never passed. So far, only Finland has such an employee data protection law; the other EU countries work with individual regulations.
It is therefore important to keep up to date with the latest developments. Currently, the GDPR in particular regulates employee data protection. However, should a separate law be passed, the GDPR would have to be further specified.
Where do we currently stand in employee data protection?
The core statement of the GDPR with regard to employee data protection according to Section 26 of the German Federal Data Protection Act (BDSG) is that personal data of employees may be collected if it is necessary for the fulfillment, commencement or termination of an employment relationship. The collection then does not require the consent of the data subject.
This includes
- Applicant data
- general personal and contact data
- bank account details
- job profile or position
- Health data
- Religious affiliation (necessary for payroll accounting)
The collection of data beyond this may require the consent of the data subject.
Why do we need an employee data protection law?
The question is: How should special situations be handled? What about video surveillance in production, for example? Is the boss allowed to read the emails sent from the work computer? Is he allowed to monitor the chronicle of internet usage?
The generally held regulations of the GDPR are not very concrete and are only designed for individual cases to a limited extent; they rather cover standard situations. It is difficult to clarify which data is actually required for the fulfillment, commencement or termination of an employment relationship.
The interests of employees and supervisors can be very far apart. There are opportunities for abuse on both sides.
The decisive argument for more employee data protection is the power imbalance between employees and their superiors. Here, one cannot speak of “equal rights for all.” The dependency on wages and jobs pushes employees into an unsovereign role and makes them swallow many a bitter pill for fear of consequences. One such bitter pill is data that is collected about him, but against which he does not dare to defend himself.
A law could provide clarity and protection for all concerned.
Outlook
The independent advisory board set up by the Federal Ministry of Labor and Social Affairs and the German Trade Union Confederation have drawn up recommendations and proposals, some of which, however, are not very detailed. Legislators therefore still have a great deal of leeway when it comes to the details.
Nevertheless, the recommendations and the draft legislation have already been published (see below). In view of the provisions in the coalition agreement, it is possible that a law could be enacted during this legislative period. Let’s see how the legislature works out the drafts and what the Bundestag and Bundesrat have to say about it.
If you have any further questions about employee data protection, please do not hesitate to contact us.
Employment law: Patrick Jardin
Data protection: Sandra Schulte and Tilo Wendt