Excessive working hours, insufficient breaks and work without adequate regeneration phases can endanger the health and safety of employees. That is why the Structural and Licensing Directorate North (SGD Nord), for example, also monitors compliance with working time regulations for employees in Rhineland-Palatinate as a trade supervisory authority.
Since the monitoring of working hours in road transport is largely digitized, the authority has recently started to deploy two employees from this area to monitor working hours in other companies. As a result of this newly created capacity, an increased number of controls regarding compliance with the Working Hours Act and the corresponding documentation obligations without any particular reason can currently be expected.
Anyone who is caught committing a misdemeanor here can expect to be fined heavily. In particular, if an employer is found to have employed workers for more than 10 hours, the resulting pecuniary advantage will currently be taken away from the employer during inspections in accordance with § 29 a OWiG. The advantage may be estimated. The SGD Nord uses the hourly wage costs, i.e. the so-called employer's gross amount, as the basis for calculation. So if, for example, 20 employees with an employer's gross of €25.00 per hour have worked only one hour in addition to the permitted 10 hours on 20 days, this can cost the employer €10,000 in the event of an audit.
We therefore advise companies to pay particular attention to compliance with the legal provisions of the Working Hours Act and to the documentation requirements arising from different regulatory areas.
Overview of the regulations on working hours
The provisions of the ArbZG, which cannot be changed by individual contract, apply to adult employees and to employees in vocational training. Working hours are defined as the time from the start to the end of work, excluding breaks.
In principle, the law provides for a working week of no more than 8 hours, but it also allows for opt-out clauses to make working hours more flexible. Working hours can be extended to up to 10 hours if it is ensured that the limit of 8 hours per working day is not exceeded on average within 6 calendar months or 24 weeks. Working hours can be extended even further by collective bargaining agreements.
On-call duty and standby duty, in which the employee is required to be at a specific location and to take up work immediately or promptly as needed, are also considered working hours and must be taken into account when calculating the duration of working hours. The situation is different for on-call duty, in which only the actual work performed counts as working time.
Periods of employment with multiple employers are to be added together in light of the purpose of the law, which is to ensure the health and safety of employees.
During working hours, the employer must provide breaks. These are defined as predetermined periods of work interruption during which the employee is released from any work obligation.
If the working hours are more than 6 but not more than 9 hours, a half-hour break is mandatory. If the employee works more than nine hours, the break must be 45 minutes long. The breaks can be divided into periods of at least 15 minutes. Employees may not work for more than six hours without a break.
Rest periods are to be distinguished from rest breaks. These are the periods between the end of work and the start of work again. In principle, a rest period of 11 uninterrupted hours must be observed, which may be reduced by one hour in certain sectors (nursing, care of the elderly and disabled and similar, restaurants, transport companies, broadcasting and agriculture) if an appropriate compensatory period takes place within a calendar month or four weeks.
In principle, employees may not be employed on Sundays and public holidays. Here, too, the legislator allows exceptions for certain sectors, which in turn are linked to the granting of a substitute rest day within certain compensation periods. However, even in these sectors, 15 Sundays must remain free of work. Other regulations can also apply here under collective agreements.
Special regulations for Sunday and holiday work in Rhineland-Palatinate are also included in the Decree on the Licensing of Work to Satisfy the Needs of the Population (Landesverordnung über die Zulassung der Sonn- und Feiertagsbeschäftigung zur Befriedigung der Bedürfnisse der Bevölkerung).
Documentation requirements
First of all, there are regulations that have often been neglected in the past that will need to be observed in the future:
In § 16 II ArbZG, the following regulation can be found: "The employer is obliged to record the working hours of the employees that exceed the working hours of § 3 S. 1 (8 hours, note from the author)." This means that all employers, regardless of the industry, are obliged to document any working hours that exceed the 8 hours permitted under the ArbZG. This documentation must be kept for 2 years. This applies even if no working hours have been specified in the employment contract, in particular in the case of so-called trust-based working hours.
Another regulation that is often overlooked is that of § 7 VII ArbZG. Accordingly, opening clauses may only be used in cases of on-call duty and on-call duty if the employee has given his or her written consent. The trade supervisory authority, in Rhineland-Palatinate the SGD Nord, also exercises control over this obligation.
In particular, however, the relatively new documentation requirements under the Minimum Wage Act may also lead to inspections by the labor inspectorate.
According to the Minimum Wage Act, all employers, regardless of the industry, must record the working hours of so-called mini-jobbers within seven days of the respective working day. Certain industries, namely the construction industry, the restaurant and hotel industry, the passenger transport industry, the freight forwarding, transport and associated logistics industry, the fairground industry, forestry companies, the building cleaning industry, companies involved in the construction and dismantling of trade fairs and exhibitions and the meat industry, in principle, record the start, end and duration of the daily working hours of all employees. The only exception to this are employees whose fixed, regular gross monthly salary is over
2,958.00 or, in the last 12 months, has earned over 2,000.00 with the same employer.
On the basis of these documents, which must be kept for two years, the trade supervisory offices will in future also check compliance with the provisions of the Working Hours Act. The customs authority provides them with the necessary information on the basis of § 15 of the Minimum Wage Act in conjunction with § 6 of the German Act on Clandestine Employment.
Employers with electronic recording devices initially fulfill the documentation requirement. However, if hours are "capped" after the maximum number of hours has been reached, this indicates an intentional violation of the working hours regulations. This can result in increased fines.
Anyone who thinks they can get away with not keeping records because they have a trust-based system of working hours in place is mistaken. The catalog of fines stipulates that in such cases, a fine of €1,600 per employee for whom a corresponding record does not exist can be imposed on the employer. Furthermore, further investigations will follow in such a case.
Sanctions
A fine can be imposed on both a natural person as an employer and on a legal entity or partnership. A fine can also be imposed on the managing director of a limited liability company, the board of directors of a stock corporation or the authorized representative of a partnership. This is already possible if this person has not fulfilled their organizational and supervisory duties. A responsible plant manager can also be fined.
The amount of the fine depends on the respective violation of the law and is specified in a standardized schedule of fines. Depending on the case, the fines may be higher or lower than the standard rates.
If, for example, employees are employed for an average of more than eight hours a day in the equalization period, according to the fine catalog, an employment of up to eight hours and 12 minutes costs €300.00 per employee. each additional 6 minutes is subject to a further €300.00. A fine of €300.00 is also imposed for each employee who is not granted a break. Anyone who deploys employees on a Sunday or public holiday without justification must expect a fine of €375.00 per employee. Even if these amounts are reduced to 75% for each additional employee in the case of a single offense, fines in the five- and six-figure range can be expected due to a review period of two years.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.