With its decision of 13 September 2022 (1 ABR 22/21), the Bundesarbeitsgericht held that every employer in Germany is legally obliged to record its employees’ working time — start, end and duration of the daily hours. The BAG anchored this duty in § 3(2) no. 1 ArbSchG, reading it in line with the European Court of Justice’s CCOO judgment (C-55/18 of 14 May 2019), which requires an „objective, reliable and accessible” time-recording system. For employees — especially those on Vertrauensarbeitszeit („trust-based working time”) who have quietly absorbed years of unpaid extra hours — this is not an abstract compliance story. Time records are evidence, and evidence is what overtime claims live or die on.
What the BAG actually decided
The case arose from a works-council dispute: the council claimed an initiative right to force the introduction of electronic time recording. The BAG denied the initiative right — for an unexpected reason: there is nothing left to initiate, because the employer is already obliged by statute to operate a time-recording system. Key points from the decision:
- The duty covers all employees within the ArbSchG’s scope — not just certain sectors, and regardless of remote or office work.
- Recording must capture beginning, end and duration of daily working time — a bare total („8 hours”) without start and end does not satisfy the CJEU’s criteria.
- The system need not (yet) be electronic; paper or spreadsheets can suffice.
- The employer may delegate the act of recording to employees — but remains responsible for providing the system and ensuring it is actually used.
The current legal state: ArbZG reform still on the table
The Arbeitszeitgesetz itself has long required records only of hours exceeding eight per day and of Sunday and holiday work (§ 16(2) ArbZG). After the BAG ruling, the Federal Ministry of Labour published a draft bill in 2023 to write a general — in principle electronic — recording duty into the ArbZG, with transition periods by company size and opt-outs via collective agreement. That draft had not been enacted into law at the point this guide was written; the legislative details (electronic form, exemptions for small employers, executive carve-outs) may shift. What does not shift: the recording obligation itself already applies via § 3(2) no. 1 ArbSchG as interpreted by the BAG. Employers waiting for the reform before recording anything are already in breach.
Is Vertrauensarbeitszeit dead? No — but it changed
Vertrauensarbeitszeit means the employer waives fixed schedules and does not monitor when you work — you organise your own time and are measured by results. Nothing in the BAG decision prohibits that autonomy. What is no longer permissible is the second, convenient half of the old model: not recording anything. Trust-based scheduling and duty-based recording now coexist:
- You can still decide when to start and stop — recording does not mean fixed hours.
- The employer can hand you the recording task (an app, a sheet, a terminal) but must ensure the records exist and must be able to access them.
- The limits of the ArbZG — the 8/10-hour daily cap and the 11-hour rest period — apply to Vertrauensarbeitszeit exactly as to everyone else; see our overview of maximum working hours in Germany.
Why this matters to you: overtime evidence
Here is the practical core. In overtime pay litigation, the employee traditionally carries the full burden of proof: you must show, day by day, which hours you worked beyond schedule and that the employer ordered, approved, tolerated or at least knew of them. The BAG confirmed in its decision of 4 May 2022 (5 AZR 359/21) that the CJEU’s recording case law does not reverse this burden — the recording duty protects health and safety; it is not itself a payment rule. A breach of the recording duty also does not create a standalone damages claim for unpaid overtime.
But the recording duty changes the evidentiary battlefield decisively:
- If records exist, they are usually the single best proof of your hours — and of the employer’s knowledge of them, which covers the „tolerated or knew” element almost automatically.
- If the employer keeps no records despite the statutory duty, labor courts increasingly apply a secondary burden of substantiation (sekundäre Darlegungslast): you present a coherent account of your hours — a self-kept log suffices as a starting point — and the employer must respond specifically. A blanket denial by an employer who unlawfully recorded nothing carries little weight; courts may treat your substantiated account as admitted (§ 138(3) ZPO) or estimate the volume (§ 287 ZPO).
In our practice, the „no records” scenario has flipped from an employer shield into an employer liability: the party that violated its recording duty makes a poor witness against your log.
How to get at the employer’s records
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Secure your own data first
Export calendars, sent-mail timestamps, shift plans and any app data while you still have system access — after a dismissal, access ends abruptly.
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File a GDPR access request
Working-time records are your personal data. An access request under Art. 15 GDPR obliges the employer to hand over copies — free, and normally within one month. This is the quickest lawful route to badge logs and recorded hours.
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Assert the claim before it expires
Most contracts and collective agreements contain Ausschlussfristen — cut-off clauses of often only three months for asserting pay claims in text form. Overtime pay evaporates quietly under these clauses. Assert first, litigate later.
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Quantify and file
Convert hours into euros (monthly salary ÷ average monthly hours), deduct anything already compensated, and file a payment claim at the Arbeitsgericht — most cases settle at the Gütetermin.
Worked example
An IT project manager in Cologne, €5,250 gross per month, 40-hour contract, formal Vertrauensarbeitszeit, no employer time recording at all. Over 14 months she works persistent evenings and weekend releases. Her hourly rate: €5,250 ÷ 173 hours ≈ €30.35.
She kept a daily app log from month 3 onwards: 232 documented overtime hours, corroborated by VPN dial-ins and release-deployment timestamps her team lead approved by email. Her contract contains a three-month Ausschlussfrist; by the time she asserts the claim in text form, 148 hours fall within the preserved window — a claim of 148 × €30.35 ≈ €4,490 gross, plus the hours accruing after assertion.
The employer’s defence — „hours were neither ordered nor known” — collapses on two fronts: the deployment emails show knowledge, and the employer kept no records despite the ArbSchG duty, so the court signals it will accept the log under the secondary burden of substantiation. Settlement at the Gütetermin: €4,200 gross plus a going-forward agreement that recorded hours above 40 per week are paid or taken as time off. Had she logged from day one and asserted quarterly, the full 232 hours (≈ €7,040) would have been preserved.
Frequently asked questions
Is Vertrauensarbeitszeit now illegal?
No. Self-determined scheduling remains lawful. What is unlawful is operating without any time-recording system. If your employer says „we have Vertrauensarbeitszeit, so we don’t record”, both halves of that sentence no longer fit together.
Can I demand to see my recorded working times?
Yes. Your recorded times are personal data — Art. 15 GDPR gives you a right to a copy. Where a works council exists, it can additionally inspect time records under its monitoring rights; see works council basics. In litigation, courts can order production.
My employer tells us to record fewer hours than we work. What now?
Do not sign or submit records you know to be false. Keep a parallel private log and preserve the instruction (email, chat) if it exists. Pressure or disadvantage because you record truthfully is prohibited retaliation — documented instructions to falsify records are also powerful leverage in any later dispute.
Does the recording duty cover home office?
Yes. The duty follows the employment, not the desk. Remote days must be recorded like office days — which, helpfully, means your remote-work hours also count as evidence. Practical overlap with home-office arrangements: the same VPN and collaboration-tool data that enables remote work also documents it.
If my employer records my time, do I automatically get overtime pay?
No. Recording proves hours; payment additionally requires that overtime was ordered, approved, tolerated or necessary, and that it is not validly covered by your salary (blanket „all overtime included” clauses are often invalid, but specific caps can be valid). The full picture is in our guide to overtime pay in Germany.