The ECJ Ruling and Its Setback for the Digital Working World

In its ruling of 14 May 2019, the European Court of Justice (ECJ) held that EU Member States must require employers to record the full working time of their employees, as this is the only way to ensure that working time limits are observed and that workers' health is protected. The ECJ therefore obliges employers to set up a system that measures the daily working time of each employee. Without such a system, it is difficult for employees to benefit from the daily and weekly minimum rest periods and from the cap on average weekly working time. In the ECJ's view, without such a system it is not possible for employees to enforce their rights. In addition, such a system makes it easier for employees to prove that rest periods have not been observed or that working time limits have been exceeded, and it gives authorities and courts an effective means of control. The ECJ expressly states that all employees are covered by this requirement, that is, full-time and part-time employees, mobile workers, and employees working from home. For employers, this means that existing working-time models must be reviewed and revised. Under German law, only the obligation pursuant to § 16 Abs. 2 Satz 1 ArbZG currently applies, namely to record working time exceeding the standard daily working hours, that is, overtime as well as work on Sundays and public holidays. Beyond this, German law currently imposes no further recording obligation, except for the economic sectors listed in § 17 MiLoG. However, according to the ECJ, the entire working time of employees must now be documented, so that any existing time-recording arrangements, individual agreements, and flexible working-time models may need to be redesigned. For the digital working world, the ECJ ruling represents a setback. In many respects, the requirements of the Arbeitszeitgesetz are no longer compatible with modern working-time models, which means that this ruling significantly restricts the flexibility of working hours that is already widely practised and desired. It should be noted that the German legislator must now transpose the ECJ ruling into national law. However, it remains to be seen how the German legislator will structure the obligation to record working time. The ECJ expressly stated that it is for the Member States to define the specific arrangements and to take account of the particular features of each sector of activity and the size of certain undertakings. As ever, employment law remains a field to watch closely.