Employers must expect an increase in the number of reviews of employees' working hours by the occupational health and safety authorities.
Such reviews are triggered by employee complaints and are increasingly conducted in offices and the service sector. Consequently, reviewers no longer focus on production companies with fixed shifts, time clocks and break times. Instead, they focus on service companies that easily lose track of the law, relying on trust-based working hours or flexible working hour models. Home office and variable work packages and project work are also affected.
The employer is responsible for ensuring that daily maximum working hours (10 hours) are not exceeded and average working hours (eight hours) are complied with. Work on public holidays and Sundays is permitted only for special work (not including normal office work). Breaks during the working day and rest periods between two working days (11 hours) must also be taken. Deviations are permitted only within strict limits or with explicit official approval. The provisions do not apply to officers, but 'officers' as defined by statute are an exception in reality.
In addition, the employer must fulfil its documentation duties, including keeping records for two years of time worked exceeding eight working hours per working day. This was augmented at the beginning of 2015 by obligatory records under the new Minimum Wage Act. According to the act, the beginning, end and duration of daily working hours must be recorded for holders of mini-jobs and those in certain sectors, including:
- restaurants and hotels;
- passenger transport and logistics;
- travelling performance;
- building cleaning;
- exhibition-stand construction; and
This new duty to keep records is likely to cause additional reviews to be conducted by the supervisory authorities in the coming months. During such reviews, compliance with the Working Hours Act will also be checked.
Driven by the concern that employees could demand remuneration for their exact recorded working hours, many companies have turned a blind eye to the requirements of the Working Hours Act in the past. However, compliance with the act is mandatory.
In this context, employers may transfer many duties (including the duty to keep records) to employees with the relevant responsibility. The employer must then make random checks as to whether the employees are fulfilling these duties. Otherwise, there is the risk of official consequences.
The supervisory authorities can:
- demand information from the employer;
- order measures that the employer must carry out; and
- impose fines for violations.
An entry in the Central Trade Register is another imminent consequence. A look at the schedule of fines quickly reveals that violations are not worthwhile. A breach of the duty to keep records will result in a €1,600 fine per breach if committed intentionally. Although only up to half of the maximum fine is imposed in the event of negligence, considerable fines can nevertheless accrue depending on the number of employees. Any party which, for example, employs staff beyond the working hour limits or does not allow rest periods in due time is equally as liable as a repeat offender if these offences are committed intentionally and carry health risks. The consequences in such cases involve:
- imprisonment of up to one year; or
- a fine.
Further, employers which violate the duty to keep records required by the Minimum Wage Act will be fined up to €30,000.
Compliance officers should review whether employers are complying with Working Hours Act regulations and how statutory rules and assignment of employees can be reconciled.
For further information on this topic please contact Martin Lützeler at CMS Hasche Sigle by telephone (+49 221 77 16 159), fax (+49 221 77 16 332) or email (firstname.lastname@example.org). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.
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