For many companies in the retail sector, Advent season marks the start of what is probably the busiest time of their working year. As a result, questions about the legal limits of the pre-Christmas workweeks are raised: how much must and may be worked, is overtime to be worked, and is Sunday work even possible?
(Statutory) Working time limits
In particular during the seasonal peaks of the pre-Christmas period, retail and mail order businesses reach the limits of maximum working hours, turning what is actually the most contemplative time of the year into a highly busy time. Sales areas and articles have to be presented in a manner suitable for Christmas, numerous consumers need a suitable gift for their loved ones at the last minute and packaging and dispatch has to be done so that everything can be placed under the Christmas tree just in time for Christmas Eve. Under German law, the basic working day must not exceed eight hours. However, if necessary - and there will be no shortage of this during the Christmas season - this can be extended to ten hours per day if an average working time of eight hours is not exceeded within a six-month period on average. In this respect it must be noted that workdays as per the German Working Time Act run from Mondays thru Saturdays. Generally, the employer may determine when exactly the employee is to perform his or her work within the framework of the applicable contracts or collective agreements.
Despite the pre-Christmas stress, regulations on statutory employee break times must also be taken into account, whereby employees must be granted at least a 45-minute rest break if they are employed for more than nine hours a day. Employees should not work for a period longer than six hours without a break, and the end of the working day must also last at least eleven hours until the next start of work. The respective regulations on working hours must be observed for both home office and on-site work by the way.
Overtime and remuneration
Often, employees are obliged to work a certain amount of overtime by explicit provisions in their employment contracts, collective bargaining or works agreements - a look at the respective agreements therefore already sheds a lot of light on this. Depending on whether "overtime up to x-hours is already covered by the base salary" or is paid individually, additional work must also be remunerated accordingly. Nevertheless, it is possible to include some overtimes (there is no fixed limit, usually between 10 - 20 % of the individual working time) can be included in the base salary. However, it is common (and already in light of the shortage of employees absolutely necessary) to remunerate overtimes in the sector and in particular work late a day or on weekends (especially Sundays, also see below). In any case, an employee may not be required to work overtime beyond the limits of the German Working Hours Act of a maximum of 10 working hours per day.
In addition to Christmas markets and preparations during the festive season, sales Sundays are also part of the annually recurring events (NB: In Germany Sunday is usually free of work and any work on Sundays - besides rare exemptions - expressly forbidden). In the retail sector, the municipalities concerned can determine individual Sundays on which sales businesses are open, the permissibility of which may vary according to state law. The number of sales-open Sundays is regulated by state law. Depending on the state, four to sixteen sales-open Sundays are possible in Germany per year. The usual practice is to grant one Sunday open for Advent sales within a municipal area, on which entrepreneurs are allowed to open their stores for Christmas time business.
In addition, applications for exemptions from Sunday work prohibition in the mail-order and retail trade, which can be granted if special circumstances so require, are also becoming more frequent in the run-up to Christmas. However, those requirements only exist if - foreseeable or unforeseeable - circumstances arise over which the company has no control and Sunday work is justified to prevent disproportionate damage. For reasons of competitive neutrality, however, this is subject to quite strict requirements. For the mail order business, Courts have argued, the exponential increase in order volume in the run-up to Christmas is an annual and foreseeable event that companies must prepare for in the long term, e. g. by hiring new staff. In particular, own, tight delivery commitments therefore do not constitute special circumstances that can justify an exemption. In January 2021, Amazon, for example, conceded a refusal by the Federal Administrative Court to operate its logistics centres on Advent Sundays in accordance with these principles.
The most important facts for the festive season (from a working time perspective) at a glance:
- maximum 10 work hours per day (with breaks of at least 45 minutes)
- ·overtime and its renumeration in accordance with the employment contract, works or collective agreement (exception: emergencies)
- Sunday work is generally prohibited (exception: sales Sunday)
- Four to sixteen Sundays possible nationwide, depending on regional law
- store opening hours on Christmas Eve until 2:00 p.m.
Overall, only minor exemptions from the statutory working time regime might apply if collective agreements are in place. As a general rule, however, the statutory regime is mandatory and strictly to observe.
Incidentally, Christmas Eve - in contrast to Christmas Day and Boxing Day - is not a public holiday, but a normal working day, so that in principle a full day of vacation must be taken for a day off on December 24. In practice, however, many companies often treat Christmas Eve - as a little Christmas present - as half a working day so that employers and employees can start their holiday preparations as early as noon in order to celebrate their Christmas days in an appropriate manner in addition to a successful as possible Advent season at work. Shops must close at 2:00 p.m. at the latest on Christmas Eve (some exceptions apply (only) for certain areas and industries, like gas stations, airports or train stations, pharmacies, catering, etc. These shops may - with some restrictions - also open on Sundays and public holidays).