Update Employment Law May 2022

Working time subject to remuneration

Judgment of the Federal Labor Court (BAG) dated October 13, 2021 - 5 AZR 295/20 

The BAG once again had to decide on matters of working time remunerations. The main issue, which the BAG addressed in its ruling of October 13, 2021, was whether the changing, preparation and commuting times of a security guard are to be regarded as working time under remuneration law.  

Facts of the case

The plaintiff is a security guard employed by the defendant state of Berlin. He is required to begin his shift in uniform, including personal protective equipment (PPE) and a service weapon. At his place of work, a locker for his uniform and PPE is not available. The defendant provides a weapon locker not far from the plaintiff’s home. However, the plaintiff decided to store his weapon at home and to put on and take off his uniform and PPE at home as well.

Reasons of the decision

The BAG held that putting on and taking off the service weapon, including loading and unloading, is part of the work of a security guard, if the employer has instructed that the service weapon must be carried on duty ready for use. The time spent doing so is subject to remuneration, if the security guard uses the weapon locker provided to him for storage.

However, if the employee decides to perform this task at home and the employer did not issue any corresponding instructions, this does not constitute working time subject to remuneration. The storage of the service weapon in the in-house weapon cabinet and the corresponding donning and doffing of the weapon is not exclusively in the interest of the employer.

At the same time, the BAG considered the donning and doffing of PPE in the domestic area to be working time subject to remuneration. The security guard is obliged to arrive on duty in full uniform - however, he is not provided with a storage facility at his place of work. Unlike in the case of the service weapon, the decision not to put on the service uniform and PPE at the place of work was not made by the employee.  

The BAG denied a further obligation to pay for the time spent traveling from the employee's home to the place of deployment. The commute to the place of work is not a necessary component of the guarding activity. An obligation to pay remuneration does in particular not result from the fact that the employee wears a particularly conspicuous uniform or carries a service weapon. In contrast to police officers, for example, the authorization to use a service weapon does not take effect until the start of the guarding activity. 

Practice note

This decision is in line with the latest decisions of the BAG on working time subject to remuneration and once again clearly highlights two key points: 

  1. It is the employer's responsibility to establish the conditions that are directly related to or necessary for the execution of the work. If the employer does not create these conditions, he is generally obliged to pay for the (working) time spent by the employee. Ultimately, this is the employee's free time, which the employee can subsequently no longer freely dispose of.

    Only if the employee decides on his own not to take up the employer's offer of storage and completes the tasks arising in this context within his private sphere, the employer is not obliged to pay for this time. 
  2. The employer is generally not obliged to remunerate commuting time. The place where the employee chooses to reside - and how far his commute is - is a matter for him/her to decide. However, the situation is different if employees are typically not always employed at a specific workplace, such as field service employees. 

    Employers should use this decision as an impetus to take a close look at their employment contract provisions on working hours subject to remuneration in order to make use of their contractual scope and to ensure legal clarity. In this context, employers should also consider issuing corresponding instructions to employees.
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