Ready for more flexibility?

Considerations regarding a legal framework for home office and mobile work

By Dr. Martin Trayer, LLM

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With digitization progressing, working from home and various other places (mobile work) has become the rule rather than the exception: Already one in three employees in Germany sporadically works from home and one in ten has a permanent home office or spends a significant part of his or her working time at home (source: TÜV Rheinland, November 11, 2016). Thus, employers are under pressure to accept or even proactively offer flexibility regarding the place of work. Nevertheless, there is still no enforceable right to home or mobile work in Germany. However, the parties forming the current government agreed during their coalition talks in February 2018 to amend the current laws and oblige an employer rejecting the employee’s request to work from home to justify this decision. The number of home or mobile workers is thus likely to further increase. The government parties also agreed to foster and facilitate mobile work by creating a legal framework. Until this intention becomes law, employers must use the existing legal framework. This article provides an overview of selected legal issues that should be considered when accepting or offering work from home or mobile work.

Home office and mobile work as a cost factor

There are many reasons for turning employees into mobile workers. Mobile work may, for instance, serve to increase the employer’s attractiveness in the war for talent or be requested by the employee. However, when combined with new office concepts, mobile work can also become a cost factor. Thus, the employer may take advantage of the fact that less employees actually need office space on the company premises by reducing the number of offices. The reduction of offices is often combined with a check-in system and flexible workspaces, which can be used according to the employee’s needs. Some employers have gone one step further by closing down the office altogether and forcing employees to work from home.

With mobile work becoming a cost factor, the question of compensation will have to be reconsidered. The Federal Labor Court had to decide several cases of employees claiming compensation based on § 670 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) for use of part of their private accommodation as a home office. In 2003, the Federal Labor Court (Bundesarbeitsgericht, BAG) held that compensation only has to be paid if the possible use for private purposes is significantly reduced, e.g., if part of the accommodation becomes a dedicated home office (BAG, decision dated 14.10.2003, file number 9 AZR 657/02). In 2011, the Federal Labor Court ruled that no compensation has to be paid if working from home has been allowed in the employee’s interests. Thus, the obligation to pay compensation depends on who benefits from the home or mobile work agreement (BAG, decision dated 12.04.2011, file number 9 AZR 14/10): An employer accommodating an employee’s request to work from home will not have to share the rental costs, whereas an employer closing the office to save rental costs himself most likely has to. Between these black and white cases is the more frequent situation of an employer allowing home office upon individual requests and subsequently deciding to take advantage of the reduced number of employees in the office by reducing office space. In legal practice, these claims are often raised in a separation scenario and the unclear legal situation may therefore lead to higher separation payments for the employer.

Employers who do not intend to take on a share of the rental costs should therefore take safeguards in home office agreements to protect themselves against potential claims from the employee. Where the home office has been agreed upon, the employee’s request should be clearly documented. In other cases, costs should be addressed openly in the agreement.

Home and mobile work = flexible working hours? Flexibility meets Working Time Directive

Home or mobile work is often associated with flexible working hours. The advantage of working from various places becomes even more relevant when combined with the right to determine when the work will be done. A common pattern for families with young children is to work during core hours determined by the employer, to interrupt work to have dinner with the family and to continue working once the children have been put to bed.

However, from a legal perspective there is a significant difference between mobile work and flexible working hours. While the place of work can be freely determined, working hours are highly regulated. The German Working Time Act (Arbeitszeitgesetz, ArbZG) contains detailed regulations including maximum working hours, breaks and rest periods. In particular, rest periods often cause conflicts with flexible working time models shifting working times to off-peak hours in the early morning and late evening: § 5 of the German Working Time Act requires an uninterrupted rest period of 11 hours between the end of one working day and the beginning of the next.

Unlike other jurisdictions, Germany has not made use of Article 22 of the EU Working Time Directive (2003/88/EC) by providing for an opt out mechanism. While senior executives (leitende Angestellte) are exempt from the German Working Time Act, other employees cannot opt out of the maximum working hours and other regulations of the Act. The Act provides for numerous exceptions and, in some cases, public authorities may grant or unions may agree to an exception (e.g., to reduce the rest period from 11 to 9 hours). However, overall, the German Working Time Act currently does not provide the level of flexibility expected by home or mobile workers. This has been addressed by the parties forming the current government and new laws shall be enacted which increase the level of flexibility but only based on a collective bargaining agreement reached with the union. For the time being, employers therefore need to ensure compliance with the current working time provisions. Measures to mitigate an employer’s risk of violating the statutory provisions may therefore include (i) requesting the employee to record his or her working time, (ii) shifting the obligation to observe compliance with the working time provisions to the employee by explicit agreement, and (iii) implementing a control system to monitor compliance.

Customer lists on the kitchen table – data protection and data security

Since the EU General Data Protection Regulation (2016/679) came into force on May 25, 2018, awareness of the importance of protecting personal data has increased significantly. Printouts of sensitive customer or employee data on the kitchen table of an employee working from home do not fit into this new legal framework. But how is it possible to ensure the same level of data protection by employees working outside the company premises?

Clear rules and technical measures are required to ensure the protection of company data. Thus, the employer may (i) request the employee to sign a data protection and data security agreement, (ii) obligate the employee to store printouts in a separate locked room or locker, (iii) implement technical measures such as laptop locks, virtual private networks (VPN), encryption, etc., and (iv) ensure that the employer can access the home office to monitor compliance.

Working from the lawn chair – health and safety at work

Ergonomic swivel chairs and height-adjustable desks are just two examples of office equipment greatly improving over the years to ensure safety at work and healthier working conditions. Photos of mobile workers, on the other hand, often show people stretching out on sofas or enjoying sunshine on lawn chairs while working on their laptops.

However, swivel chairs and desks are not just nice to have: The employer is legally obliged to ensure a healthy and safe working environment. The German Workplace Regulation (Arbeitsstättenverordnung), which was revised in December 2016, clearly states that (some of) its provisions also apply to monitor-based workplaces at the employee’s home, which have been installed by the employer for an agreed duration and an agreed part of the weekly working time. Thus, a permanent home office falls within the scope of the health and safety regulations, whether the employee works full- or part-time from home. On the other hand, the employer does not have to observe the regulation for mobile workers or employees working from home on a case-by-case basis (sporadic home office).

The main obligations under the Workplace Regulation for home offices are (i) an initial risk assessment of the workplace, (ii) instruction of the employee on health and safety issues, and (iii) compliance with some requirements for monitor-based workplaces. Other aspects of the Workplace Regulation such as emergency exits, size of windows, sunlight etc., do not have to be observed in the home office. It is worth noting that the obligations under the Workplace Regulation only apply to the extent that (i) the design of the workplace at the home office differs from the design of the workplace at the employer’s office space, and (ii) the specific requirements are suitable for home offices, which leaves some room for interpretation and flexibility. Thus, the employer should ensure that the design and equipment of the home office corresponds to that of regular offices on their premises. Otherwise, a risk assessment will become necessary and the employer needs to obtain the employee’s consent to enter his or her home.

Summary

The current legal framework does not provide the flexibility regarding workplace and working time that modern employees require from their employers. Until the government revises the existing laws, employers have to take safeguards by setting up a legal framework of their own. Otherwise, compliance issues (working time, data protection, health and safety) and cost issues (rental costs) may arise – some even where home office is only accepted on a case-by-case basis. When setting up the legal framework for home offices, participation rights of the works council may have to be observed. These may result, inter alia, from §§ 99 and 87 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG). Where a works council has been established, the legal framework may therefore take the form of an agreement with the works council rather than that of a policy. However, where individual rights of the employee are concerned (e.g., granting access to his or her home) or where individual acknowledgements are required (e.g., regarding data protection), a policy or agreement with the works council may not suffice and individual home or mobile work agreements need to be set up in order to be sufficiently protected against the pitfalls under the existing laws.

mtrayer@kpmg-law.com