Classification of travel time as working time
Working time in terms of the German Working Hours Act (ArbZG) is the time from the start to the finish of work. A business trip is defined as a journey to a place outside the regular place of work where a work assignment is to be performed. As simple as that. However: Does that kind of journey count as »working time«?
Does it constitute working time?
- On the outset, clearly »travel to work«, i.e. the journey to and from the home to the regular place of work, does not constitute working time.
- Likewise, there’s an easy answer for employment contracts which stipulate driving as a major part of the work performance, as, for example, in the case of field staff or professional drivers. Travel time in this context constitutes working time in terms of the ArbZG.
In other respects, according to the German Federal Labor Court, travel time counts as working time in terms of the ArbZG if during this time the employee is »put to task« in a manner directed not by him- or herself and predominantly in the interest of the employer. Accordingly, the specific instructions of the employer and also the choice of transport are decisive factors.
If the employer instructs the employee to perform work during business travel, this will be working time (example: instruction by the employer to respond to work email or to attend a phone conference).
Where no such instructions are given further details come into consideration:
- If the employee is using public transport he or she will have the opportunity to use this time for recreation and personal interests. This opportunity is enough for this business trip not to be counted as working time. This also applies is the employee voluntarily performs work in the course of the journey.
- However, the situation is different if the employee is driving a car. In this case the (abstract) opportunity for recreation is missing, as the employee has to concentrate on the traffic throughout. Such a business trip accordingly counts as working time, provided the employer has instructed the employee to use a car. Note: According to the ArbZG, the time spent by a non-driving passenger in the same vehicle is not counted as working time.
- However, where the employer has given the employee freedom of choice with regard to the type of vehicle, travel time is not counted as working time, as the employee – at least theoretically – had the opportunity to rest.
Consequence: The German Working Hours Act must be observed with regard to business travel
Where business travel is counted as working time in terms of the ArbZG its provisions must be complied with, such as a maximum of 10 hours per working day and rest time of 11 hours after the end of work.
Must travel time be paid for?
If travel time is counted as working time under the ArbZG, do employees need to be paid for it as well? As a basic principle, working time according to the ArbZG is not necessarily the same as the working time to be remunerated according to the contract of employment.
The following applies: Working time according to the ArbZG must be remunerated. This specifically also applies to business travel during normal business working hours.
Business travel during normal business hours which does not count as working time in terms of the ArbZG according to the aforementioned critera must likewise be remunerated. However, where such travel takes place outside normal business hours it only needs to be remunerated if this has been agreed individually or by way of a company agreement or collective agreement. Where no such agreement is in place a claim for remuneration only arises if the employee could reasonably expect remuneration for the time spent travelling outside his or her normal business working hours. There is no general legal rule which specifies that travel time must be remunerated in all cases. Particularly senior managers with above-average salaries would generally be held not to be entitled to a reasonable expectation to be remunerated for such travel time.
Employer’s options of organization
Employers should not leave the question of remuneration of travel time open but instead put transparent agreements in place in order to avoid lack of clarity and the associated potential for conflict. In addition, employers should set clear rules about the way in which the provisions of the ArbZG can be complied with with regard to travel for work. This concerns, for example, instructions with regard to the means of transport and the timing of outward and return journeys to meetings off site. It is usually also helpful to set clear rules of conduct for the case that a return from a business trip cannot be achieved without exceeding the limits set by the ArbZG.
Such transparent rules ensure that a business trip does not become a leap in the dark for any of the parties involved.