Employment Law 4.0 – German Law on Working Time and Digitalization

Digitalization offers the opportunity of nearly unlimited availability — of employers and employees. The employment relationship becomes more and more flexible — at least in a technical sense. But is this also true with respect to the legal framework in Germany, at least when it comes to hours of employment?

Our article covers the main principles of German mandatory law on working time which employers should be aware of in times of mobile work and availability.

Basic principles of German law on working time (Arbeitszeitgesetz, ArbZG)

The German Working Time Act — the Arbeitszeitgesetz ArbZG — implements the EU directive 2003/88 into German law with the aim of protecting public health and the safety of employees. Thus, the Act is not directly concerned with questions of remuneration, e.g. payment for overtime. It focuses on rules about when and how long employees are allowed to work.

The Act applies to all employees except for employees with executive functions in the sense of sec. 5 para. 3 of the Works Council Constitution Act (BetrVG). Thus, managing directors or external service providers do not fall within the scope of the law.

• § 3 ArbZG — maximum working time per day

Pursuant to sec. 3 ArbZG, an employee is allowed to work for a maximum of eight hours per day. A prolongation of up to ten hours is possible if the average daily working time within a reference period of six months or 24 weeks still amounts to eight hours (based on six days per week). Any daily working time beyond ten hours is not allowed.

Additionally, any work beyond eight hours must be documented and kept for at least two years for inspection by competent authorities, sec. 16 para. 2 ArbZG.

• § 4 ArbZG — breaks

After six hours of work, the statutory minimum break is 15 minutes. After nine hours, 45 minutes must be given for a break. The time of a break cannot be counted as working time.

• § 5 ArbZG Ruhezeit — rest period

After the employee has finished work for the day, a minimum rest period of eleven hours must be respected. The employee must not restart work before completion of this rest period.

• § 9 ArbZG — Sundays and public holidays

Generally, no work should be scheduled for employees on Sundays and public holidays. Of course, sec 10 ArbZG provides numerous exceptions for several kinds of industrial sectors and lines of business like public transport, healthcare, etc.

Sanctions

Any breach of these rules may lead to a fine pursuant to sec. 22 ArbZG, of up to EUR 15,000.00. In case of serious breaches, these may even constitute a criminal offence, pursuant to sec. 23 ArbZG, especially if the health and safety of an employee have been endangered as a consequence of such a breach. Employers should be aware that not only the company itself may be fined, but also managing directors and executive employees could be held responsible.

Thus, the management should be aware of the importance of compliance with the statutory requirements. This also applies to the obligation to keep records of any hours of daily employment beyond the eight hours.

Deviations

Deviations from the strict rules on daily working time and rest periods are currently only possible within a collective agreement with trade unions and only for specific employers, mainly for those who show a substantial degree of standby or emergency services (e.g. in hospitals), sec. 7 ArbZG.

Definition of "working time" – typical problems with compliance

Surprisingly, the Working Time Act does not give a precise definition of what is meant by "working time". It says in sec. 2 para. 1 that hours of employment should be defined as the time from the beginning to the end of the work shift minus breaks. At first sight, this seems to be clear, but in the following cases, which reflect typical situations in our mobile, digitalized business environment, you may wonder what applies:

Case 1 — rest period

Employee E. (working in Europe) leaves the office at 3 p.m. because he needs to take care of his little children at home. He wants to finish his work at home using his laptop. He starts to work again at 7 p.m. and stops at 9 p.m. after he has sent an email to his management superior in the U.S.

His contact answers at 11 p.m. and they have a phone call for about 10 minutes. The employee is expected to return to the office at 8 a.m. on the next day. Is he entitled to come in later by law?

Answer: The problem here is the rest period of eleven hours. The employee stopped working at 9 p.m. After eleven hours he could have restarted his work in the office at 8 a.m. the following day. However, the rest period, which started at 9 p.m. was interrupted by the phone call at 11 p.m. (though it only took ten minutes). The law does not distinguish between major or minor interruptions. Thus, the rest period ends at 10 a.m. the next day. This, of course, is unsatisfactory and clearly a case for reform of the law, at the national — or even more efficiently — at the European level.

Case 2 – business travel

Our employee E. travels a lot for his job. He travels three hours by train to a customer. There, he negotiates for five hours and then returns to the office again by train. Thus, he travelled six hours. With the five hours of negotiation, his working time adds up to 11 hours — is this a breach of sec 3 ArbZG?

Answer: According to recent judgment, the travel time in public transport (bus, train, airplane) may not be regarded as working time — at least when there is no demand or expectation to work in the train on the laptop etc. Thus, the time in the train counts as a "rest period". This might be different if the employee is expected to drive a car. Then it must be regarded as regular working time, e.g. with regard to employees in the field service. For these people, the usage of cars is a typical part of their regular work.

Case 3 – checking emails

The employee works from home. By contract, he is obliged to work for eight hours from 8 a.m. until 5 p.m. However, beyond 5 p.m. he regularly checks his smartphone for any kind of new emails because he expects an answer from his US colleagues. He does so while he cooks for his family, watches TV and puts the children to bed. Is time spent checking emails part of the working time?

Answer: The answer depends on the circumstances. Again, it is very important that the employer gives clear and precise guidance about what he expects from his employees and what he does not. Usually, a continuous email check might be interpreted as comparable to the time during "on call duty" of medical personnel outside the hospital. During such duty, e.g. doctors, are expected to be available via phone but are not asked to stay at a certain place. Availability as such does not count as working time but only the times of actual work. This is different from "standby services" during which employees must stay in a defined place and be ready to take up work whenever it becomes necessary. Then the complete time, including waiting time for orders to come in, is regarded as working time.

What can employers do?

Availability and mobile work offer more flexibility. However, the law on working time remains rather strict. Thus, employers should think about working on the following measures:

• Definition of timeframes within which employees are expected to work and be available

• Rules on usage of public transport and work during travelling times

• Rules on breaks and compliance with rest periods

If there is a works council, it has a right of co-determination when guidelines are given. Then, upon request of the works council, the employer is obliged to negotiate and agree upon a respective works council agreement.

An alternative time schedule can be established in cooperation with the works council if a collective agreement applies that allows for a deviation from the Working Time Act.

Future prospects

The German Federal Ministry of Labour published a paper on "Labour 4.0 (Arbeiten 4.0)" at the end of last year, which summarizes the discussion on necessary reforms of labour law in view of digitalization. The Minister has made a proposal for reform that focuses on the trade unions:

According to this proposal, the unions will be given more possibilities to agree upon alternative time schedules with employers’ associations. Employees will be given an "option" to opt out of the general system and choose the alternative one defined in the collective agreement. The proposal suggests an experimental period of two years for such a law, during which the whole process and results will be evaluated. However, it is questionable whether we will see such a law before the next General Election in September 2017.

If you have questions related to this topic please feel free to contact
Dr Roland Klein (Lawyer, Licensed Specialist for Labour Law).