For some time now, the current Corona pandemic and the resulting restrictions have unquestionably led to more and more employees having to move into the home office. Also the BMAS (Federal Ministry of Labor and Social Affairs) recently extended the validity of the Corona Occupational Health and Safety Ordinance, which primarily states the obligation of employers to offer home office work.
As a result, employers are currently having to deal more and more intensively with the legal regulations regarding working from home, as there are many important aspects to consider. One particularly important aspect is the recording of working hours in the home office. In this context, the question arises as to whether the obligation to work in a home office also includes an obligation to record time and what recording options the employer is entitled to in this regard.
The regulations in the Working Hours Act regarding breaks and rest periods can also be transferred to home office work without any problems. On workdays of more than six hours, the break time is at least 30 minutes; for more than nine hours, a break time of at least 45 minutes applies.
Rest periods are also defined in the same way. There must be at least eleven hours between the end of the working day and the next working day. Here, too, a shorter rest period may be permissible by way of exception if it is subsequently sufficiently compensated.
In a ruling in 2019, the European Court of Justice (ECJ) had stated that Employer are obliged to establish an objective, reliable and accessible system to measure the daily working time. Accordingly, the complete working time must be recorded. This includes the beginning and end of the working day as well as break times.
However, checking whether working hours are being observed is also part of the usual employment law obligations of every employer. Even though the ECJ has now issued its ruling on the recording of working time, there are currently no specific national regulations in Germany on the recording of working time. Until now Employees according to the German Working Hours Act, only document overtime and extra hours worked beyond the regulated working hours.
Accordingly, there is freedom of form with regard to the recording of working hours, which means that it is basically up to the employee whether the recording is done by hand or electronically.
Another option for time recording in the home office are so-called chatbots. For example, employees can "communicate" with them via an app or desktop chat and convey simple commands such as "clock in" "clock out" and "pause" depending on the situation at hand to start, end or pause time recording.
It is also possible to connect the bot to appropriate software so that the hours worked are automatically transferred to the system and can be checked immediately by the supervisor. The advantages of a software solution are that time recording works without any problems and without having to invest in new equipment, as the working time is recorded in the software on the desktop or via app in mobile devices.
It also ensures that Employer get an immediate overview of the working hours of their Employees and, if necessary, take appropriate measures, such as compensating rest time, reducing overtime, etc. Additionally, data regarding absences, vacation and sick leave can be easily recorded that have an impact on working hours. Timesheets created online could eventually be downloaded monthly at the push of a button so that they can be used for payroll accounting.
Another mobile solution would be to record working hours directly via the browser. The employee in the home office logs in and can start recording directly. Here, the working time is recorded with a digital time clock. A so-called web-based time recording is particularly suitable for flexible working, because all booked times are live and available from anywhere. It is therefore irrelevant whether one is in the office or in the home office, the real-time data flows automatically into the hour accounts of the employees.
Furthermore, another digital solution could be considered, in which a so-called keylogger is installed in the corresponding computer system of the employee. In this case, the working time is recorded via the employee's PC use. However, the use of these tools is highly controversial in practice due to doubts about data protection regulations, as all data entries made by the employee on the computer are recorded.
If there is a works council, it will very likely intervene. According to Section 87 VI of the Works Constitution Act, it has a right of co-determination in the introduction and use of technical equipment intended to monitor the behavior or performance of employees. Therefore, keyloggers may only be used where this is communicated transparently. Secret use of any programs is strictly excluded, as the Federal Labor Court already ruled in 2017 with its supreme court decision.
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