The (un)known territory of involuntary and voluntary noncompliance

Working time: regulations in Germany

By Prof. Anja Mengel, LL.M. (Columbia)

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Globalization and digitalization of the economy has increased the frictions between the mandatory statutory limits on (regular) working hours under German (and European) law on the one hand and the requirements of employers and, ultimately, customers and clients on the other. Often, employers, in particular managers of small and medium-sized operations and/or subsidiaries or branches of foreign companies, do not even know in sufficient detail about the rather strict statutory limits. Hence, noncompliance with working-hours regulations is by far not an exception, even though it may result in heavy fines and even criminal proceedings in the event of a review or investigation by the authorities – for instance, one instigated by a disgruntled employee or competitor – as the working-time laws are part of workplace health and safety regulations.

The main limits to comply with German (and European) law imposes a general daily working-time limit of eight hours excluding breaks. This limit is then reached if a full-time employee is obliged to work 40 hours a week under his or her employment contract – assuming the full-time employment is carried out during the rather standard five working days a week. Does that mean overtime work is impossible under the statute? No, the working-time regulations does not impose a week consisting of merely five working days, but instead permits a six-day week only prohibiting employees from working on Sundays (to the largest extent). Hence, the regulations set the overall maximum number of working hours per week at 48 hours (six days at eight hours).

Maximum daily working hours …

Does this require all overtime work to take place on Saturdays then? No again, as there is another important rule to consider for the maximum number of daily working hours: While the maximum is eight hours per working day on average within a certain time frame, the (most important) German statute, the Act on Working Hours (Arbeitszeitgesetz) permits a maximum of 10 hours a day for a short-term period, namely for about a few months. The statute requires that in a period of 24 weeks or six months the average daily working time of eight hours not be exceeded. This in turn permits employees to work up to 10 hours a day (absolute maximum of daily working time) and up to 60 hours a week (absolute maximum of weekly working time unless Sunday work is permitted by way of special exception) as long as the employer grants free time to correspondingly average out the daily working time to just eight hours a day over six months. The six-month period must be averaged “on a rolling basis.”

… and resting time

The matter is further complicated by the statutory requirement to comply with providing an uninterrupted resting time of 11 hours between two working days. Hence, an employee working up to the maximum daily working time of 10 hours for a few days in a row, for instance from 8 am to about 7 pm (a minimum break of 45 minutes must be added in), may do so only if the resting time between 7 pm and 6 am the next morning is free of any work. While this requirement did not pose any problems for most employees in the nonglobalized and nondigital old economy, the requirement placed on a lot of managers as well as regular employees to work “between the global time zones” and to be electronically available outside standard office hours, creates intense friction with the resting-time regulation. Being available for late-evening or early-morning telephone conference calls or at least to check and briefly reply to e-mails after having left the office or workplace, translates into an interruption of the resting time and requires, under the statute, postponing the beginning of the next working day. This also applies to very short interruptions, for instance by just a few minutes. These frictions with the modern digitalized and globalized working environment are so intense that even the Federal Ministry of Labor, traditionally leaning to political positions of the German Social Democratic Party and the unions plans to test further exceptions to the current strict statutory rules soon.

Working at night, in shifts and on Sundays

Further strict limits apply to work at night (11 pm to 6 am) and to shift working hours. The German statutes define a long list of exceptions to these strict limits, however they are almost all based on the application of collective bargaining agreements and/or at least the existence of a works council and the conclusion of agreements with the works council. Companies or operations that do not employ collective bargaining agreements or do not have elected works councils (and there are good reasons to have such a setup) must therefore comply with the “plain” and strict statutory rules. In addition, work on Sundays is generally prohibited but the statute does define a rather long list of special exceptions according to branch. This means, for instance, that work in hospitals, restaurants and bars as well as for employment related to entertainment, sport, media and the like is permitted. However, most jobs in the service industries, commerce and retail are not covered by exceptions and therefore work must be suspended on Sundays.

Trust-based flexitime

Some managers might think they should simply ignore the regulations and grant the option of trust-based working hours. In this approach, the employee’s (regular) weekly working hours are not stipulated in the employment contract and hence not monitored for overtime or missing working hours; this concept leaves it to the employee to “work as much as needed to get the work done.” However, while such trust-based flexitime is permitted under employment contract law, the public-law regulations on the maximum number of working hours still apply, and they require the employer to monitor and document the daily working hours of each employee and maintain records for at least two years for inspection by the authorities. If the authorities review the company or operation as part of a general audit or a special investigation instigated by a whistleblower or as a result of a similar occurrence, the tendency will be to consider missing documentation as an indication the employer’s organization has not been set up in a compliant manner, which could potentially lead to higher fines.

Practical advice

Is it possible to achieve compliance with the German (and European) working time regulations? Yes. For a lot of employers, however, it requires foregoing the idea that employees may be requested to work more than 40 or 48 hours a week over long periods of time and requires active management of working hours by shifting between highly intense periods of work and periods of free time in an effort to set off (excessive) overtime. Depending on the individual circumstances, the application of collective bargaining agreements might also provide more flexibility.