Trust-Based Working Hours and Time Recording - Between Trust and Control

1. What is flexitime?
2. How is working time organized in flexitime?
3. Are there overtime regulations in flexitime?
4. What are the benefits of flexitime for employers?
5. What are the disadvantages of flexitime for employers?
6. How is time recording done in flexitime?
7. How is time recording regulated by law?
8. Is there a legal regulation for time recording in flexitime?
9. Is flexitime still possible with the legal regulation of time recording?
10. What should employers who offer flexitime pay attention to in the future?
11. Conclusion

Flexitime is a very popular model among employees. The freedom of time management and the renouncement of constant control by supervisors feels liberating. Many now fear this freedom due to the judgement of the European Court of Justice and the decision of the Federal Labor Court regarding working time recording.

In this article, we look at the advantages and disadvantages of flexitime and what has changed due to the judgment. Can flexitime work with time recording? And what are the rules for overtime? Finally, we will look at what employers have to take into account in the future and which tools are suitable for the time recording of flexitime.

What is flexitime?

Flexitime is a flexible working model where employees manage their working hours independently, without employers checking attendance times. At the beginning, a certain number of weekly hours are agreed upon. The employees can then decide freely when they want to work how much. With flexitime, it's not the presence that is primary, but the fulfillment of the agreed tasks. The employees are obliged to take care to complete these tasks carefully and timely. The working time is not predetermined by fixed time slots, theoretically one could start work at 11 am. However, time windows can be agreed to ensure, for example, that employees are reachable for their colleagues during a certain period.

How is working time organized in flexitime?

In flexitime, employees are responsible for organizing their working time themselves. There are no prescribed working hours and no supervision by superiors. They must, however, adhere to certain rules set out by law and which could come from employers.

But flexitime is based precisely on: Trust. Trusting that employees are capable and willing to complete their tasks punctually and properly. Useful guidelines from employers could be: fixed consultation hours, attendance times for meetings or team activities, deadlines for completing tasks.

Are there overtime regulations in flexitime?

In flexitime, there is no uniform regulation for overtime. The simple reason being that employees are responsible for managing their working hours efficiently in order to achieve the set goals. Employees must manage their working time in such a way that they can achieve their tasks within the given time frame. However, the provisions on maximum working hours and rest periods may not be bypassed even in flexitime. If there is still an increased workload that makes compliance with regular working hours impossible, clear communication with the superiors is the solution.

Ideally, it should be clarified at the very beginning of the employment relationship with flexitime whether, when, and how employees can take time off for accumulated overtime. There is also an obligation to document overtime in flexitime. Overtime proof must be kept for two years.

What are the benefits of flexitime for employers?

• Employer attractiveness: Flexitime is seen by many as an attractive working model. It is considered modern, up-to-date, and employee-oriented.
• Employee Satisfaction: Employees who can arrange their working hours themselves are often more motivated and committed. With flexibility, they can also better reconcile work and private life.
• Productivity: Employees can plan their days flexibly as needed and according to individual needs. This increases their productivity.
• Employee Retention: Employees feel valued when they are shown a lot of trust and are given flexibility in their working hours. In most cases, this leads to a stronger bond with the company.

What are the disadvantages of flexitime for employers?

• Requires a lot of trust: Without a trustworthy culture in the company, which is lived and not just stated on the homepage, flexitime is not possible.
• Higher coordination effort: The flexible working time design can mean that the coordination of projects, meetings, and absences requires more time and agreements.
• High demands on employees: Not everyone finds it easy to handle the freedom and responsibility that comes with flexitime. This can lead to frustration and overtaxing, both of which could increase absenteeism.
• Team work becomes more difficult: Flexible working hours can have a negative effect on teamwork, as the presence and availability of team members is less predictable.

How is time recording done in flexitime?

So far, no time recording was required in flexitime. Employees usually record their working hours themselves to have an overview of the work done. They can also inform their superiors verbally about the work done, but they are not obliged to. According to § 16 Abs. 2 ArbZG, employers are, however, obliged to record working hours that exceed the daily working time of 8 hours for a 5-day working week. The recording obligation can be delegated to the employees. But this will not be sufficient in the future. More on this later.

How is time recording regulated by law?

Since a judgment of the European Court of Justice (ECJ) in May 2019 and the decision of the Federal Labor Court (FLC) in December 2022, time recording is compulsory for all companies in Germany. It is no longer sufficient to document only overtime and work on Sundays and public holidays.

Employers must now also provide a time recording system for flexitime that is accessible, reliable, and objective. This is to ensure that the working hours comply with the legal regulations. You can read more about the changes resulting from the FLC judgment, here. In addition, there is the Working Hours Act, which regulates the daily working hours, rest, and break times among other things. If companies do not comply with the regulations, they face fines and penalties, also set out in the Working Hours Act.

Is there a legal regulation for time recording in flexitime?

There is no legal basis for time recording in flexitime. Agreements can be made in the employment contract or in the works agreement, a verbal agreement is also sufficient. There should be a target agreement where goals, timetables, and specific tasks, deadlines, etc. are recorded. Employees do not have a general right to flexitime.

However, the provisions of the Occupational Health and Safety Acts also apply to flexitime:

• Daily maximum working time of 8 hours (in exceptional cases up to 10 hours)
• Rest time of at least 11 hours in a row
• If the working time is more than 6 hours up to 9 hours, a break of 30 minutes must be taken
• If the working time is more than 9 hours, a break of at least 45 minutes must be taken

Is flexitime still possible with the legal regulation of time recording?

In short: Yes! But a little different. Employees can still work flexibly and independently within the framework of the legal regulations. However, the working hours will have to be recorded seamlessly in the future. Flexitime is still possible, as the legal regulations do not influence the way and time when employees work. However, added to this is the obligation to document regular working hours, which has not existed so far.

What should employers who offer flexitime pay attention to in the future?

The only change will be the mandatory documentation of working hours in the future. Although it may seem restrictive at first, it serves the protection of the employees. Recording the working hours shall ensure that the legal regulations are adhered to, even when the time can be divided freely. As part of their duty of care, employers have to spot-check their employees' recorded times, for example, to see if too much overtime is being worked.

You can find a summary of the best tools in this OMR Reviews Software Guide on Time Recording.

Conclusion

Flexitime remains an attractive model for employers and employees in the future due to its flexibility. The key to success are clear rules and guidelines for flexitime. At the same time, it is important to make employees aware that flexitime and time recording do not exclude each other and that their freedom of work is not being restricted. Trust is also the basis here for balancing freedom and control.