How many hours in a day

Working Hours Act

That is how long employees can work

Dr. Britta Beate Schön
Legal Expert As of March 8, 2018

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

  • The Working Hours Act sets maximum working hours to protect employees: 48 hours a week.
  • If you work more than what is stated in your employment contract, you can have overtime paid under special conditions.
  • The Working Hours Act, also known as the Working Hours Protection Act, also stipulates how long periods of rest and breaks must be. Basically, there must be eleven hours of rest between two shifts.
  • Sundays and public holidays are protected. Basically nobody has to work there. There are, however, many exceptions to this.
  • If the employer violates the maximum permissible working hours and thus the Working Hours Act, he commits an administrative offense. Compliance is monitored by the trade supervisory authorities or the occupational safety and health authorities.

Those who work full-time today usually do their job 40 hours a week. On average, Germans work three hours more per week than stipulated in the employment contract. Much of the overtime is not paid. But what working hours are admissible at all, and where does the legislature push with one Maximum working hours the bolt?

How many hours are employees allowed to work per week?

The Working Hours Act (ArbZG) sets the maximum permitted working hours in order to protect the health of employees. That is why it is often called the Working Time Protection Act.

So far: Employees are generally allowed to work on one working day work no more than eight hours (Section 3 sentence 1 ArbZG). Breaks are not included. Therefore, anyone who starts at 9 a.m. and leaves the company at 5:30 p.m. has worked eight hours in accordance with the law, as a 30-minute lunch break is deducted (Section 4 ArbZG).

Per week may an employee according to the law 48 hours at most work for 48 weeks a year, as the law entitles him to at least four weeks vacation. The Working Hours Act therefore assumes a maximum working time of 2,304 hours per year.

Ten Hour Day - In special exceptional cases, the employer may extend the working day to a maximum of ten hours. This ten-hour limit must not be exceeded under any circumstances. This results in a temporarily permissible maximum weekly working time of 60 hours.

The employer must compensate for longer working hoursby making sure that the employee works less in the subsequent period. As a result, employees are not allowed to work more than eight hours on average within six calendar months or within 24 weeks.

These maximum limits also apply if things get tight in the company because several employees are sick or vacancies are not filled.

Documentation obligation - The employer must record if an employee works longer than allowed (Section 16 (2) ArbZG). This is intended to make it easier for the supervisory authorities to check whether the employer has made sure that the overtime is compensated as intended. A company with time tracking is much easier.

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Who does the Working Hours Act apply to and who does it not?

In principle, the Working Hours Act protects all employees and trainees. Civil servants, judges and soldiers are not employees within the meaning of the law. The Youth Labor Protection Act applies to employees under the age of 18. The Working Hours Act does not apply to the following employees:

  • Senior executives and chief physicians (Section 18 (1) No. 1 ArbZG),
  • Executive employees in the public service (Section 18 (1) No. 2 ArbZG),
  • Employees who care for, look after or raise people and who live with them (Section 18 (1) No. 3 ArbZG),
  • Church workers who organize church services, for example organists (Section 18 (1) No. 4 ArbZG),
  • Aviation employees (Section 20 ArbZG).

What counts as working time?

The working time is the time from the beginning to the end of the work without the breaks. But what about the way to work, business trips or changing rooms?

Commute - The way to work is not part of working hours. Business trips can be working hours if the employee works during the trip. This includes the journey by car to a specific location or work on the train or plane. The trip does not count towards working hours if the employee can recover and relax during this time (BAG, judgment of July 11, 2006, Az. 9 AZR 519/05). That is why business trips by public transport are usually not working hours.

Changing rooms - In principle, changing clothes is not part of working hours. This can be different if the employer prescribes certain work clothing and the employees in the company have to change clothes (BAG, judgment of September 19, 2012, Az. 5 AZR 678/11).

Is standby time counted as working time?

In addition to regular working hours, in certain industries it is necessary for the employee to be available at night or on the weekend in order to work immediately or after a short time if necessary - in the hospital, for example. A distinction is made between work readiness, on-call duty and on-call duty. Depending on the classification, the employer must evaluate the willingness to work as full or at least partially as working time.

There are always two questions:

  1. Is this working time according to the Working Hours Act?
  2. Does the boss have to pay for the time?

Willingness to work

The Working Hours Act evaluates times of readiness to work as working time.

Example:A saleswoman who doesn't have a customer to serve is ready to work. Even employees in the call center who don't have to answer a call are ready to work. In the case of a truck driver whose car is being loaded or unloaded and he has to monitor this, this time counts as working time. There is, however, a special feature: If truck drivers alternate as driver and passenger on longer trips, the times as passenger are not working hours (Section 21a ArbZG).

The employer must also do this in order to be ready to workagreed salary in fullPay, unless the regulations in the collective agreement or employment contract contain deductions or lump-sum payments, which is permissible. A company agreement that incorrectly treats such times as unpaid breaks is ineffective (BAG, judgment of October 29, 2002, Az. 1 AZR 603/01). The employer also has to pay for the on-call time of a truck driver or a passenger, although this is not working time according to the Working Hours Act. The regulation in Paragraph 21a of the ArbZG is only relevant in terms of working time protection law. It is irrelevant for the employer's obligation to pay remuneration (BAG, judgment of December 21, 2016, Az. 5 AZR 362/16).

On-call service

The on-call service is to be assessed differently. In this case, the employee mustHave them ready at an agreed locationto start work. In the waiting phase, however, he can also rest and even sleep. This is also in the sense of occupational health and safety working hours. This means that the employer must take rest periods and the maximum permitted working hours into account when designing the duty rosters.

Example: Doctors who are on duty in the hospital at night or on weekends are on call if they have a room in the clinic in which they can also rest.

The employer must pay for the on-call service as another, additional service provided by the employee. This can also be done on a flat-rate basis if the pay is in reasonable proportion to the work actually involved. For example, a payment of around 68 percent of the remuneration for regular working hours is in order (BAG, judgment of January 28, 2004, Az. 5 AZR 530/05; 5 AZR 503/02).

The case law of the European Court of Justice does not change anything about working hours after on-call duty (ECJ, judgment of October 3, 2000, Az. C-303/98). However, it is also possible that the employer remunerates at least a certain number of hours and also pays something for actual work performance - for example per answered call or per assignment. Instead of remuneration, the employer can also grant time off for on-call duty. This has the advantage that there are usually no problems with the Working Hours Act in this model.

Even if the employer violates the Working Hours Act and the Working Hours Directive with his duty roster for the on-call duty, the employee is not entitled to more money than provided for in the employment or collective agreement. However, an agreement on working hours including on-call duty averaging more than 48 hours per week is void (ArbG Berlin, judgment of June 21, 2006, Az. 86 Ca 26096/05).

The following principles apply to working hours with on-call duty:

  • The employer may extend the daily working hours, including on-call duty and rest breaks, up to a maximum of 24 hours. But this requires a regulation in the collective agreement.
  • After working 24 hours at the latest, the employee is entitled to an uninterrupted rest period of at least 11 hours.
  • The employee may not work more than 48 hours per week.
  • Only if a collective agreement allows it, the employer, with the consent of the employee, may agree to working hours of more than 48 hours per week.

On-call service

An employee is on call when hecan be at home, but the employer can call him at any time.

Example:Doctors who have to do so-called background services. You can be at home, but must always be available in an emergency. You may have to drive to the clinic, but sometimes a phone call is enough.

In the case of on-call duty, however, only the time during which the employee is working counts as working time actually worked. The entire on-call service is not working time.

However, if the employer stipulates that the employeeon site within 10 to 20 minutesmust be, is that asOn-call service and no longer as on-call duty with the consequence that the time counts as working time (ECJ, judgment of February 21, 2018, Az. C-518/15).

Whoever has to be on call has in principleno right to paymentif he was not called. However, collective agreements often also result in remuneration for on-call duty. If work is required during on-call duty, the employer must also pay for it, including the travel time to the place of work.

Are there rest periods and mandatory breaks?

The Working Hours Act stipulates how long rest periods and breaks must be.

Rest time - Anyone who goes home in the evening after work should have at least eleven hours of rest before starting again the next morning (Section 5 (1) ArbZG). This also applies to people who work in shifts - they too are entitled to eleven hours of rest. Double shifts are not permitted and violate the Working Hours Act. In certain facilities such as hospitals, the rest period between two work shifts can be reduced to ten hours. Readiness for work and on-call duty are not part of the rest period. On the other hand, on-call duty is also rest time.

Breaks - Nobody is allowed to work longer than six hours without a break. Then he is entitled to a half-hour break. If the working time is more than nine hours, the employee may take a break of 45 minutes.

Even if the employee does not take the breaks, he cannot have the time paid if his weekly working hours are still within the framework. Then that's bad luck.

What applies to flexitime?

From when to when the employee has to work is rarely stipulated in the employment contract by the employer. Nothing is regulated in the Working Hours Act. In many companies there are therefore different models of so-called flexitime.

Simple flexitime - The employee is often allowed to determine when to start work within a predetermined time frame per day. He only has to do the eight hours of work. If you start early in the morning, you can leave early. If you start late, you have to work longer - but within the specified flextime framework, for example from 7 a.m. to 7 p.m. That is the simple flextime. It is based on trust and usually works without time recording.

Qualified flexitime - With so-called qualified flexitime work, the employee can change the daily working time within a specified framework. For example, he can work longer or shorter than eight hours on certain days and compensate for minus or overtime hours within a compensation period. So he can work before or after. There is usually a core working time during which the employee has to be present. As a rule, in addition to the work actually performed, the working hours owed for a certain period of time are recorded on a time account. This flexitime model is usually accompanied by electronic recording of working hours.

Tip: If you work without time recording, you should make a note of how many hours you actually worked per day and per week. This is the only way to get an overview of whether overtime has been incurred. Then an employee should also document them.

Is it forbidden to work on Sundays and public holidays?

Employees are generally not allowed to work on Sundays and public holidays - from midnight to midnight (Section 9 ArbZG). They should rest, recover and not have any employment.

However, there are exceptions, especially for hospitals, care facilities, petrol stations, museums, theaters, restaurants and other facilities that also have to work on Sundays. But even those who work on Sundays and public holidays are entitled to have at least 15 Sundays off a year.

Two exceptions concern the beginning and the end of the Sunday and public holiday rest period. In this way, the employer can bring the start for truck drivers up to two hours forward. Companies that work in several shifts are also allowed to move the beginning or end of the day off up to six hours back or forward.

The employer must always record all working hours on Sundays and public holidays. The trade supervisory authorities or the labor protection offices monitor whether the Sunday rest is observed.

What if the employer violates the Working Hours Act?

In the past, employers have often violated the Working Hours Act. That is changing, at least in larger companies that comply with the applicable laws in terms of good corporate governance - this also includes the regulations of the law on working hours.

Employment contract violates the law - If the employer specifies a working time volume beyond the maximum working time in the employment contract, the regulation is not entirely void, but only partially. The working time agreement remains in effect within the statutory maximum limit of 48 hours per week. In one case that the Federal Labor Court (BAG) had to decide, the contract stated that the employee should work 10.5 hours a day and 52.5 hours a week. The regulation is to be replaced by the maximum working time of 48 hours per week. However, the employer also had to pay for the 4.5 hours actually worked too much - that was just under 8,000 euros (BAG, judgment of August 24, 2016, Az. RS 5 AZR 129/16).

Report to the supervisory authorities - Employees can inform the competent authority if the boss does not adhere to the regulations of the Working Hours Act. That can be quite effective.

Administrative offense - A boss who employs an employee for more than ten hours or who tolerates him to work longer commits an administrative offense (Section 22 (1) No. 1 ArbZG). There is a risk of a fine of up to 15,000 euros.

Refusal to work - If the employer demands that the employee work beyond the legally permitted hours, the employee may refuse to do so. That would be illegal occupation.

Overtime pay - Anyone who works more than stipulated in the employment contract may be entitled to overtime remuneration. We have summarized what you have to consider in the guide to overtime and pay.

More on this in the legal protection insurance guide

  • You can get good legal protection for less than 300 euros a year.
  • Tariffs recommended by us: Arag Aktiv Komfort, Auxilia Jurprivat, WGV Optimal

To the advisor

Dr. Britta Beate Schön

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

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