United States: Mistakes And Myths About Home Offices And Mobile Working In Germany

Last Updated: April 25 2019
Article by Sebastian Maiß

The child is ill, an important delivery is expected "between 8:00 a.m. and 7 p.m." or the car has to go to the garage. What could be more natural than working from home? A quick email to the employer that you will work from your home office in the morning and be in the office in the afternoon and the problem is solved. But it's not always that simple. The following is a brief overview of the legal situation in Germany.

When is a home office a home office?

The discussion about mobile working shows a fundamental error in the terms used. An activity in a "home office" only exists if the employer sets up a fixed workplace for the employee outside the company and the employee works from there. "Mobile work," on the other hand, is when the employer allows the employee to perform work outside the company without setting up a fixed workplace. Mobile work can therefore be considered for activities in which the employee does not need more than a laptop or other "mobile" work equipment. This mobile work is not limited to a specific place outside the workplace, but can be done anywhere (e.g., in a café or on business trips). In practice, it is more common for employees to be engaged in "mobile work" than to be working from a "home office." In Germany, therefore, it is more appropriate to speak of "mobile work."

Can employees decide for themselves when to work from home or be mobile?

No. In Europe, there is (currently) no legal entitlement to "home office/mobile work" other than in the Netherlands. The employee may therefore only work from home or remotely if this is permitted either under an employment contract, a company agreement or on a case-by-case basis approved by the employer. If employees stay at home without being allowed to do so, they risk a warning. If employers make it possible to work in the home office or remotely, it normally is good practice to require that employees understand they must be present in the company for operational reasons (e.g., to attend meetings).

Can the employee determine his or her own working hours in the home office?

No. Mobile work is only about changing the place of work and not about additional free time (New Work does not mean No Work). "Mobile work" is not in itself a working time model. The employees must therefore perform their work to the same extent and of the same quality as if they were working at the company's location. An activity from home should therefore not be confused with half a day's holiday or compensatory time off. Those who want to work on the move should therefore ask themselves whether they are able to reconcile the newly gained (local) freedom with the demands of the profession. If the reason for remote work is to better achieve a work/family life balance, there is the risk that doing so does not do justice to either the child or the employer. What if the employee is waiting for the delivery service? Even then, the employee still must be able to perform his or her contractual duties, for example, by being available for a telephone conference. As a rule, these dilemmas are therefore not solved by regulations on mobile work, but only by flexible working time models which—as agreed to by the employer—provide for compensatory time off. In practice, for example, working time accounts have been established for this purpose. As an aside, if a child falls ill, the employee has the right to stay at home anyway—without having to work at the same time—in compliance with the legal requirements under German Labor Law.

When I work remotely, I can work as I like?

An advantage of mobile work is that employees often can better combine their professional and private interests. For example, an employee could work from 6:00 a.m. to 4:00 p.m. in the office, spend the next two hours at the gym, go home and work an additional two hours catching up on email until 8:00 p.m. There are some points to consider: In addition to the question of whether the employee may work "flexibly" from home at all, the work activity performed at home also must be in accordance with the regulations governing working hours. In the above example it makes no difference whether after the gym the employee drives back to the office or home to work. According to the Working Time Act, the following applies under German Law:

  • The total working time in the workday may amount to at most 8 hours. It can be extended to up to 10 hours if this difference is compensated within 6 months or 24 weeks. This maximum limit of 10 hours of daily working time may not be exceeded even for mobile work.
  • After the end of the maximum working day, the employee must observe a rest period of 11 hours. By collective agreement, this rest period can be reduced to nine hours, which is already used in Tariff Agreements for the metalworking industry.
  • Break times must also be observed during mobile work. They may not simply be deducted by the employer, nor may they be taken at the beginning or end of working hours. Breaks serve as the employee's rest periods between work hours.

Just briefly checking an email

But how does this work in practice? In our example, the employee's working time ends at 8:00 p.m. so that he could return to work at 7:00 in the morning. So far, so good. But what happens if the employee receives an email at 1:00 a.m. and reads and processes it? If the reading of the email is "working time," this means the 11-hour rest period would shift accordingly. But when is "work" within the meaning of the Working Hours Act? Jurisprudence assumes that work occurs when the employee performs an activity for the employer (i.e., for the benefit of others) and is burdened in a certain way. However, the Working Time Act does not provide for a time or content threshold of insignificance. And let's be honest: Everyone knows that a 2-line email can trigger work responsibilities for an extended period. The actual question to be asked is therefore whether the employee has to read (and answer) this email at all. On the one hand, this is a legal question, namely the subject of the contractual and company regulations. Is the employee expected to read emails from the employer at certain times, thereby making it a question of on-call duty (subject to remuneration)? On the other hand, it is a management issue. Does the manager expect employees to be available for the employer in the evening? This is where the actual need for regulation lies.

Out of sight out of mind

Another widespread misconception is that employers can "get rid" of their obligations, especially under the Working Hours Act and the Labour Protection Act, if they allow their employees to work on the move. This is as wrong as it is dangerous:

  • Working time: The employer is responsible for complying with the provisions of the Working Time Act even if the employee is not bound to a specific location. The employer must create the organizational prerequisites to ensure that the provisions of the Working Time Act are complied with, e.g., breaks and rest periods. The employer must also record and control the working time exceeding eight hours in the case of a location-independent activity. The employer, however, can delegate the recording of time to the employee. If the employment relationship is marginal employment (i.e., the employee does not earn more than EUR 450 per month), the employer must even record the beginning and end of the working time. Violations of the Working Hours Act can result in substantial fines and also entitle the health and safety authorities to issue orders to record working hours.
  • Occupational health and safety: The distinction between home office and mobile work is particularly relevant for occupational health and safety. If the employer sets up a home office, it ensures that this workplace meets the requirements of occupational health and safety standards. For this purpose, the employer must carry out a so-called risk assessment when setting up this workstation for the first time, i.e., identify and eliminate risks in the home office. As an aside, employers are not permitted to enter the employee's home without consent.

Crashed making coffee

And what about accident insurance if the employee suffers an accident in the home office or during mobile work? According to case law, an accident in the home office is only insured if there is an internal connection between the event leading to the accident and the operational activity. According to the courts, the intended action of the insured person is essential for the assessment of this question, i.e., whether the insured person wanted to perform an activity serving the employer in the specific case and whether this intended action is confirmed by the objective circumstances of the individual case. Walking up the stairs to a home office is a regular activity associated with work, so therefore a fall would likely be covered. Making coffee, on the other hand, is not. When in doubt, the employee must prove that an insured activity existed. For this reason, it is advisable either to include employees in an employer's group accident insurance policy or to recommend that employees take out private accident insurance that also covers accidents in the home office or during mobile work that are not covered by statutory accident insurance.

The wastepaper basket as a data leak

Last but not least: Data protection does not stop at the company door. Particularly when setting up a home office, the employer must ensure data security through a data protection / IT security concept that also provides for suitable technical and organizational measures (TOM). These include, for example, the employee's obligation to keep lockable cabinets ready, to log on to the Internet only via VPN or tunnel solutions and not to store passwords in a freely accessible manner. As banal as it sounds, this means ensuring that printouts with sensitive company information not wind up in the home office's or café's trash. In some cases (perhaps obviously), it may be appropriate to mandate shredding of sensitive documents. The extent to which there is a particular need to create greater awareness among mobile workers of the problem of the confidentiality of company information can be seen regularly on train journeys when employees work on laptops without privacy, or make uncensored and noisy business telephone calls or hold conversations with colleagues travelling with them.

Conclusion

As noted above, in Germany, employees do not enjoy a legal right to work anywhere they please. And it may come as a surprise, but employees in Germany rarely even talk about mobile working anymore, but rather about flexible working time systems and the management culture in the company. In this environment, companies can and should create solutions that meet both their operational requirements and, to the extent appropriate and feasible, the wishes of the employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sebastian Maiß
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions