When does an employee work and how much does the employer have to pay for it?

A discussion based on the example of changing time

By Dr. Bernd Borgmann and Tom Stiebert

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The title of this article is deliberately vague. Labor law usually deals with areas that are obviously to be regarded as work and work time, but this view is hardly compatible with modern labor law. The boundaries between work and leisure are blurred. But the times between work and leisure are very important for the employer: If they count as working time, then according to the rules of the German Working Hours Act (Arbeitszeitgesetz – ArbZG), less time remains for actual work. If they have to be paid as working hours, this leads to an increased financial burden on the employer. In this article, these questions and the influence of the employer will be discussed on the basis of changing time. This is not just a theoretical problem, as a simple calculation shows: Calculating 10 minutes a day for changing into and out of work clothes amounts to about 1.5% of daily working hours. This demonstrates that this problem is associated with either considerable costs or potential savings.

The demarcation of working time and rest time

In essence, the distinction between rest time and working hours is not difficult to draw: “Working time means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties” (Article 2 No. 1 Directive 2003/88/EC) while “rest period means any period which is not working time” (Article 2 No. 2 Directive 2003/88/EC). The German definition in section 2 ArbZG is very similar. But only at first glance do all problems seem to be solved. The blurred lines between the two often make it unclear whether the employee is carrying out his or her activities or duties or not. Even the actual duties of the employee are often unclear. For example, he or she has to travel to work in order to start work. Nevertheless, this usually is not working time. Only in cases “in which workers do not have a fixed or habitual place of work, the time spent by those workers traveling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time” (ECJ, September 10, 2015 – docket number C-266/14 – Federación de Servicios Privados del sindicato Comisiones obreras). Here, however, driving belonged to the actual activity – the employee was obliged to travel from customer to customer.

In principle, therefore, it can be established that working time is when the employee works for the employer as part of his or her contractual obligations. In general, this may sound simple, but it can be extremely complicated.

Influence of the employer on working time

This is clearly evident in changing time and German courts have already dealt with this problem on several occasions. They found that working time is involved when the time spent changing clothes serves the interests of the employer. In this case, the employee does not dress in particular clothes in his or her own interest, but because the employer demands it. This applies to all garments that are worn specifically for the profession (e.g., protective clothing and hygiene clothing). Here, the employee only changes clothes because the job demands it, so this is (mainly) in the interest of the employer and counts towards working time.

However, case law goes even further. If the work clothes are particularly conspicuous, the changing time is also treated as working time. Although these clothes could also be worn privately, this cannot – according to the German Federal Labor Court – be expected of the employee. The Federal Labor Court has already answered several times the question of when the clothing is particularly conspicuous. In any case, if the color and design of the clothes clearly identifies the employer (and the name may even appear on the garment), there is particular conspicuousness. The Federal Labor Court affirmed this, for example, in relation to the yellow-blue clothing of a furniture store (Federal Labor Court, November 10, 2009, docket number 1 ABR 54/08). In a recent ruling, the court goes even further: It is not necessary for the specific employer to be identifiable. The allocation of clothing to a specific industry is sufficient. The worker cannot be forced to reveal his or her profession to the outside world. For this reason, even neutral white service clothing (for example, in elderly care) has particular conspicuousness (Federal Labor Court, September 6, 2017, docket number 5 AZR 382/16). In all these cases, the time spent changing clothes therefore is working time.

Working hours can only be excluded if private use of the clothing is permitted and the clothes are not particularly conspicuous. The scope of the employer is thus limited. However, even if a regulation is possible, the employer must consider the consequences: Who is liable for private pollution or destruction of the clothing? What happens when the clothing appears in an undesirable context (for example, demonstrations), etc.? The risk associated with private use therefore is high.

Influence of the employer on payment of the time

If the employer does not want to take this risk, the question arises as to whether such time should be remunerated. Although this is working time, it does not automatically mean that it has to be remunerated. Working time right and remuneration right are to be distinguished. German law does not recognize the principle that working time always has to be remunerated. Only in individual cases, case law emphasizes the opposite. For example, in a very controversial ruling, the Federal Labor Court ruled that minimum wages must be paid for periods of on-call time (Federal Labor Court, June 29, 2016 – 5 AZR 716/15). However, it is less clear whether the time required to change clothes has to be paid accordingly. Case law is silent on this.

However, as case law shows tendencies in principle to demand payment for working time, it is to be expected that this will be extended to changing time, even if it is not the central activity. Employment contracts usually do not contain any regulation in this respect. In any case, that would happen if the contract alone contained a regulation for remuneration and did not differentiate according to activity. It would be possible, however, to regulate or exclude such payments in the employment contract. The German courts also say that, in any case, a different remuneration system for this time is possible. This especially applies to collective bargaining agreements. But even a regulation in the employment contract itself seems possible. If such a rule is missing, the time required to change clothes is to be compensated with the usual hourly wage. If costs are to be saved here, such a regulation is recommended. It is important to plan this in advance when drafting a contract as it helps to minimize the problems presented here.

Summary

It is clear that the employment law treatment of periods in which the primary employment contract activity is not provided is extremely problematic. In these borderline cases, extreme care must always be taken to avoid errors and, if necessary, costs. This problem is of great practical relevance and identical questions arise with travel time. Contracts should therefore differentiate exactly what is remunerated. Otherwise this leads to the employer having a double risk: Being able to employ the employee for a shorter period of time (since nonprimary activities already include working hours) and, in addition, having to pay compensation for this time. A solution can be found for the second problem, thereby also minimizing the risks for the employer.

bernd.borgmann@dlapiper.com

tom.stiebert@dlapiper.com