A short coffee break, smoking, cleaning up after closing time, or a business trip: Many employers and employees are unsure exactly what is included in paid work time. This applies.
Is it part of working time to quickly vacuum after closing time, even though the shift is already over??
Does it count as working time if the employee smokes a cigarette, makes a coffee or goes to the toilet?
Does the boss have to pay if the employee puts on his work clothes before starting work??
It is not always clear to bosses and employees what activity is still considered work and must be paid for.
Contents: This is what you can expect in this article
This is part of working time:
Starting up the PC, setting up the machine and switching off the equipment are all part of working time. This set-up time is necessary to perform the tasks specified by the employer – and must therefore be remunerated. After all, an IT employee could not work without a functioning computer.
Putting on and taking off work clothes is also sometimes referred to as set-up time. What applies to the locker room time, read below.
Cleaning up after closing time
Particularly in the retail trade, in workshops and in the catering trade, it happens that employees are still cleaning up after closing time. "Since the cleanup is done at the instigation of the employer, the work is part of the working time," explains Alexander Birkhahn, specialist lawyer for labor law. Even if the actual shift only lasts until closing time, the additional time must be remunerated.
This is also the case with rework. Example: If a store closes at 8 p.m., but a customer is still in the store until 8:15 p.m., the employer must compensate its employee for this additional quarter of an hour. "You can assume that everything that is still done in the interest of the company is working time," says Birkhahn.
Short rest breaks
Briefly fetching a coffee, taking a break from the computer screen or doing a quick stretching exercise for a tense neck: "Strictly speaking, this is not part of working time and is a break," says Alexander Birkhahn. In practice, however, such short breaks of up to 5 minutes are often tolerated by the employer.
If you want your employees to really only get a coffee during their legal break, or want to avoid an excessively long coffee break, you can specify this in the contract:
- If short breaks are permitted, the employer can stipulate a specified time in the contract: "The employee is permitted to take a maximum coffee break of ten minutes during working hours. The ten minutes can be divided up over the course of the day."
- Short breaks are not allowed: "Employees are not allowed to get coffee or do stretching exercises during working hours. These activities must be moved to regulated breaks."
If short breaks are tolerated without mention in the contract, but the employer notices that the employee takes a coffee break three or four times an hour, a warning is permitted. "But I would first point out to him that it is too much and a violation of the duty to work," says Birkhahn. However, each employer must decide for itself whether three coffee breaks an hour is too much.
Field service employees are constantly on the road to customers, travel is part of their contractual obligation (Section 611, Paragraph 1 BGB). Accordingly, employers must pay them for travel time. Not only the journeys between the individual customers count as remunerated working time, but also the first and last journey from home to the customer and back again. The same also applies to drivers and sales representatives.
However, if the main workplace is at the company’s headquarters and the employee only occasionally serves customers away from home, the trip from home to the customer does not count as working time.
When on standby duty, the employee must be in the company or in the immediate vicinity in order to be able to start work immediately if necessary. Since a ruling of the European Court of Justice in 2000, on-call duty is working time within the meaning of European working time law (Rs C-303/98). In 2004, the Working Hours Act (ArbZG) was also amended in this regard.
Since on-call time is considered full working time, this time must also be paid for. However, since the duty is normally associated with a less strenuous workload for the employee, it does not have to be remunerated to the same extent as the rest of the working time. Because the directive, which counts on-call time as working time, is primarily aimed at protecting the employee’s health and not at paying for work. Employers are allowed to set a lower hourly wage for on-call time in labor and collective bargaining agreements – but it must be equal to the amount of the minimum wage.
If the business trip time falls within the regular working time, the travel time counts as working time and is remunerated. But what about when the business trip is outside of actual working hours? This issue is regulated by the Working Time Act and the European Working Time Directive.
Whether travel time is part of working time depends primarily on whether the employer requires its employees to work during travel time, for example, to answer e-mails. If this is the case, then the travel time counts as working time. By the way, driving a car is always considered working time for the driver during business trips. If the employee can sleep or read on the train, then the travel time does not count as working time – even though the trip was only taken because of work.
Attention minimum wage!
If an employee is paid an hourly wage, the Minimum Wage Act comes into force for the time of travel. An example: a fitter earns 20 euros an hour. If the employee travels on business, the employer must pay the 20 euros only during the performance of the regular work. But: For the time of travel, whether by car, bus or train, the employer must pay the minimum wage of currently 9.60 euros (as of August 2021). However, time spent on site or in a hotel is free time and – unless otherwise stipulated in the contract – does not have to be remunerated.
For business trips also lump sums can be paid. However, if the conversion is accurate, the payment must correspond to the minimum wage – regardless of whether it is an hourly wage or a monthly salary.
This is not part of working time:
During the lunch break, employees do not perform any work, therefore they are not paid, says Alexander Birkhahn.
Instead of taking a break, simply working through the day is not possible. This is because Section 4 of the ArbZG stipulates that employees must take regular breaks:
- From six hours of work at least 30 minutes break
- Take at least a 45-minute break after nine hours of work
While going to the toilet is a natural need and must therefore be tolerated and paid for by every employer, smoking breaks cause trouble time and again. "The employer is not obliged to pay for cigarette breaks, provided that he has clearly forbidden the employee to do so in advance." The boss can therefore demand that employees make up the working time. He can also prohibit smoking in the workplace altogether.
During on-call duty, the employee does not have to be at work. As a rule, the employee must be in an agreed area and must be available at all times by telephone or pager. Unlike on-call duty, on-call duty is not working time within the meaning of the Working Time Act and the European Working Time Directives; and therefore does not have to be remunerated either. Pursuant to Section 5 of the Labor Code, on-call time is considered rest time. However, employers and employees often agree on on-call allowances specified in the contract.
Only when the employee is requested to perform work (including travel time), he has a claim to the contractual or collectively agreed remuneration. Then, by the way, Sunday and holiday bonuses are also due.
Getting to and from work
The so-called travel times do not belong to the working time and are not paid accordingly.
Celebrate a break in or a break out
According to the ArbZ, an employee’s welcome or farewell party is not part of compensated working time. This time is a communicative break. However, since people often talk about work, many bosses tolerate such celebrations during working hours.
What you can do if an employee cheats on their breaks and working hours: Working time fraud: When employers can terminate without notice
There are special regulations here:
Putting on and taking off work clothes
Employees and employers often have doubts as to whether putting on and taking off prescribed work clothes is part of working time. This uncertainty is also due to the fact that case law has made a U-turn here. For a long time, changing clothes was not generally considered to be subject to compensation. In 2012, however, the Federal Labor Court ruled that an employer who prescribes certain work clothes must pay for the changing time (Az.: 5 AZR 678/11).
However, this only applies under the following conditions:
- The employee must wear the work clothes already at the beginning of the shift.
- The employee is not allowed to change already at home (often the case with uniforms).
- There are no contractual or collectively agreed arrangements that changing clothes is already covered by remuneration.
According to a ruling by the State Labor Court of Hesse, employers must also pay for the donning and doffing of protective/safety clothing, even if employees can theoretically already put it on at home. In this case, the judges ruled in favor of an employee of a waste-to-energy plant because, according to the ruling, he could not be expected to wear the protective clothing in public (Ref.: 16 Sa 494/15).
The time the employee spends at the doctor’s office is not part of working time and therefore not paid for. In certain cases, however, where the doctor’s visit cannot be scheduled during the employee’s free time, the employee is entitled to overtime according to Section 616 of the German Civil Code (BGB) and a ruling by the German Federal Labor Court (BAG) of 29 April 2009.02.1984, AP no. 64 Entitlement to paid time off. This applies, for example, to acute complaints, such as a sudden toothache or a minor accident. Routine examinations should be scheduled during the employee’s free time.
Quickly finishing a presentation outside regular working hours or helping the boss clean up after closing time: Employers are allowed to order overtime, provided there are regulations on this in the employment contract, collective agreement or in a company agreement. The following applies: Whoever orders overtime must also pay for it.
If an employee voluntarily works overtime, he or she is not entitled to a salary. Unless the boss has given him so much work that the employee cannot do it during his regular working hours.
Alternative to pay: Employees and employers can agree that employees can reduce overtime hours instead of being paid for them. For example, employees can accumulate additional vacation days by working overtime or, in agreement with their boss, take off work earlier to compensate for overtime work.
Whether a devout Christian, Muslim or follower of another religion: according to Section 616 of the German Civil Code, employees are entitled to payment for short breaks if the break is for personal reasons and not their own fault. And this includes prayer breaks. Employees should, however, inform their boss about regular prayer breaks.
But: If prayer breaks disrupt business operations – for example, because an employee should actually be operating a machine instead of praying – bosses do not have to put up with it. Then they can demand that the employee postpone his break.
Bosses can also stipulate in a company agreement that prayer breaks are not part of paid working time.
And what if the boss does not have a task for the employee?
"This is the famous employment risk of the employer. The employee is only obligated to offer his work performance," explains Birkhahn. If the boss does not have a task for his employee for an hour, this hour still belongs to working time and must be paid for.
Maximum working hours
Whether overtime, business trips or on-call duty: employers should observe the maximum permitted working hours. According to the Working Hours Act, this is eight hours on working days (excluding breaks), with a maximum of 48 hours per week. Up to ten hours of work a day are possible if employees do not work more than eight hours a day on average within six months – for example, ten hours on some days, six on others, or are given other days off to compensate for this.
By the way: the Working Hours Act is one of the laws that must be posted. They must post it in the current version in the company. Which still include: Laws requiring posting: The posting requirement applies to these laws
If employers employ young people between the ages of 15 and 17, the Working Hours Act does not apply to them, but the Youth Protection Act does. Young people are allowed to work a maximum of 8 hours a day and 40 hours a week (no more than five days). In addition, different break regulations apply to them: From 4.5 hours of working time, they are entitled to a 30-minute break; from six hours of working time, they are entitled to a one-hour break.
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