Background and discussion
In 2022, a ruling by the German Federal Labor Court (BAG, 13 December 2022, 1 ABR 22/21 – see the article by Christof Kleinmann and Kathrin Reitner, in: fourword, Issue 02/2022) caused a stir when it ruled that employers are obligated under § 3(2)(1) of the German Occupational Safety and Health Act (Arbeitsschutzgesetz, ArbSchG) to “introduce and use” a system for recording their employees’ working hours. The BAG derived this from the legal obligation to ensure an “appropriate organization” in order to guarantee the “safety and health” of their employees. This ruling stemmed from the EuGH’s decision of 14 May 2019 – C-55/18 (see the article by Markus Künzel and Dr. Erik Schmid, in: Deutscher AnwaltSpiegel, Issue 11/2019) – according to which employers are required to establish an “objective, reliable, and accessible time-recording system” capable of measuring the daily working time performed by employees. Despite legislative attempts, the German “Work Time Law” still does not include an explicit, general statutory obligation applicable to all employees to record working hours. There are only isolated provisions, such as in § 16(2) of the Work Time Act (Arbeitszeitgesetz, ArbZG), under which employers are required to record working hours exceeding the daily regular working time. § 17 of the Part-Time and Minor Employment Act (Mindestlohngesetz, MiLoG) provides for a recording obligation for “the start, end, and duration of the daily working time” for specifically defined groups as, for instance, so-called “minor employment” (maximum monthly remuneration €603 per month).
The ruling from the BAG sparked a discussion as to whether this obligation applies without exception to all employment and whether occupational safety authorities can enforce these obligations or sanction non-compliance. The BAG did not have to rule on this question, as the case concerned issues of co-determination law.
The fact that a new chapter is being opened in this discussion – namely, the question of administrative enforcement – is demonstrated by the ruling of the Hamburg Court (the “Court”) of 18 July 2025 – 21 K 1202/25 – which concerned an international law firm that employed numerous attorneys as associates. In accordance with “industry practice” working time regulations or record-keeping obligations had previously appeared to be a matter of little concern internally. The long working hours of employed attorneys frequently observed there were to be compensated by above-average remuneration. All of this is also found in other professions, such as tax consultants, agencies, or even investment banks, so that the ruling is of general importance.
Facts of the case
In 2020 and 2021, the occupational safety and health authority responsible for Hamburg (hereinafter the “Authority”) received anonymous complaints alleging “massive violations of the Work Time Act” and work schedules extending late into the evening or night for employed attorneys (hereinafter “Attorneys”). The Authority investigated these allegations and requested working time records for the Attorneys, which the law firm was unable to provide. The law firm referred, inter alia, to the working hours recorded daily by the Attorneys for individual clients, which the Authority deemed insufficient. In 2023, it issued an order against the firm – referring to § 3(2)(1) ArbSchG – stating that the firm must ensure that the “start, end, and duration of the daily working hours” are recorded and provide evidence to the Authority that the Attorneys had been “instructed” regarding the recording. It based its decision on § 17(2) ArbZG and § 22(3), sentence 1, no. 1 ArbSchG. Pursuant to § 17(2) ArbZG and § 22(3) sentence 1 no. 1 ArbSchG, the supervisory authority may order the necessary measures that the employer must take to fulfil its obligations under the respective act. The Authority rejected the law firm’s objection to the order. Hence, the law firm filed a lawsuit before the Court.
It argued that § 3(2) ArbSchG, cited by the Federal Labor Court, did not constitute an intervention provision but merely a general obligation on the employer that did not include a general obligation to record working hours, which also applied to § 22(3) ArbSchG. The more specific ArbZG does not contain a general obligation to record working hours, so that § 17(2) ArbZG is also inapplicable. Furthermore, the law firm referred to the role of attorneys as “independent organs of justice,” their special position of trust and their obligations toward clients. They should be treated on par with senior executives (“Leitende Angestellte”) and chief physicians (“Chefärzte”) exempted from the obligation by the ArbZG, as well as with certified public auditors (“Wirtschaftsprüfer”) exempted from such obligations as well.
The Court’s ruling
The Court was not convinced by the law firm’s arguments. In its comprehensive reasoning, it essentially held that the Authority’s orders were justified under § 17(2) ArbZG, thereby deviating from § 22(3) ArbSchG, which the Authority had invoked. The Court explained that § 17(2) ArbZG is the more specific legal basis, as the order concerns compliance with the regulation of working hours resulting from the ArbZG. It “takes precedence” over the general provisions in the ArbSchG. The ordered time recording was a “necessary measure” within the meaning of § 17 ArbZG to “prevent a threat to public safety and order”, which is rooted in the failure to comply with the time recording obligation. Violation of recording duties may indicate non-compliance with legal regulations on maximum working hours and rest periods. Such violations appear “reasonably likely” based on the complaints of the Attorneys.
The fact that the law firm could not submit any evidence regarding working hours and breaks confirms this likelihood, especially since recording the hours to be billed to clients does not serve as a substitute. It further notes that if the time spent on client work can be recorded, it is also reasonable to record working hours.
The Court also rejects the objection that the ArbZG does not apply to employed attorneys. The reference to the Attorneys’ allegedly independent time management is not convincing, as the Work Time Act does not distinguish whether working hours are exceeded “voluntarily” or “on instruction”. Nor does the exception for “executive employees” within the meaning of § 5(3) of the Works Constitution Act apply, since the Attorneys neither hold power of attorney (“Prokura”), general power of attorney, nor work free from instructions, nor do they possess special experience or knowledge that is “significant” for the firm. Employed attorneys are not part of the management level of the firm. Their work is limited to client-related tasks. Classifying them as equivalent to certified public auditors is also ruled out, as there is no “unintended gap” in the legal regulations, which could open a door for an exemption of attorneys by analogy. Nor does this obligation conflict with the attorney’s role “as an independent organ of the administration of justice”, or with a special relationship of trust with clients that would prevent the replacement of attorneys working on a case. It is up to the law firm to assign multiple attorneys who complement one another to larger cases.
The Court’s reaction to the objection that the decision of the Authority was too vague due to the lack of a definition of the term “working time” can be understood almost as a “slap in the face.” The Court noted that the law firm, which also provides advice on labor law, should be familiar with the terminology.
The Court also held that the order requiring that it must be proven that Attorneys have been “instructed” regarding the duty to keep records and that the supporting documents on such instructions be submitted to the Authority was justified under § 17(2) ArbZG.
The law firm has appealed the ruling. The Court acknowledged fundamental importance to the question of the legal basis for the order of authorities.
Conclusion: Legal uncertainty for law firms and related industries
The ruling has significant legal implications for law firms and other employers – such as tax consultants, investment banks, and advertising agencies – where long working hours are common and where keeping records of working hours is not standard practice. If the ruling stands, it will raise significant financial questions for such employers. Given the high time pressure in law firms and similar professions, many staffing plans likely need to be reevaluated, but also the existing, sometimes high, salary structures. The consequence is therefore not merely an increased administrative burden.
Legally, this remains a dynamic field of labor law. It is evident that the legislature’s inaction since the EuGH ruling in 2019 has led to significant legal uncertainty, particularly regarding whether a general obligation to record working hours can be assumed de lege lata at all, or whether authorities have the corresponding powers of intervention and on what legal basis this can occur.
This finding makes the question of modernizing working time law appear increasingly urgent. This concerns not only the recording obligation but also the issue of making working time regulations more flexible. There is a pressing need to allow for the flexibility to structure working hours in a way that accommodates different professional circumstances, particularly for various occupational groups, although, of course, “boundless work” cannot be the goal.
And here, too, the question arises regarding the division of roles in a constitutional state: Is the legislature fulfilling its responsibility, or is the judiciary “forced,” as is so often the case in labor law, to assume the role of a substitute legislator? The appeal may further clarify the “need for action” in this regard. Law firms and similar professions are advised to prepare in good time for any changes that may arise.
