This post was also contributed by Sebastian Kutzner, Trainee, Norton Rose Fulbright LLP (Munich).
Due to increasing demands for a work life balance, uncertainty as to employees’ rights to rest periods, in particular, is widespread. German law distinguishes between two types of rest periods:
- Rest breaks (to be granted during working time); and
- Resting time (the period between two working days)
Subject to special rules for different industries both are regulated by the German Working Time Act (Arbeitszeitgesetz). During both periods employees cannot be required to work but must be free to use this time for their own leisure.
With regard to the general rules on working time, the maximum daily working time for a five-day working week without breaks is 9.6 hours per day/48 hours per week (for a six-day week, this is 8 hours per day). This maximum may be extended to up to 10 hours provided that over a period of six months or 24 weeks, an overall average of 9.6 hours is observed (i.e. by working less on other days). Employees may also be required to work on Saturdays, which then counts as a regular working day.
However, collective labor agreements and/or company works agreements often provide for a shorter working week.
An employee’s right to rest breaks depends on the duration of the individual’s working day. If the employee works between 6 – 9 hours he or she is entitled to a minimum break of 30 minutes. If the employee works longer than nine hours, the minimum break period must be at least 45 minutes. Although rest breaks may not be allocated to the beginning or end of working day, employers are free to decide when exactly the rest breaks are to be taken. However, employees may not work for more than six hours at a stretch without being granted a rest break. Moreover, all rest breaks may be split up into several breaks of at least 15 minutes.
Differing rules apply to minors (i.e. those under 18 years of age). Under the German Youth Protection Act (Jugendarbeitsschutzgesetz), minors working 4.5 – 6 hours a day must be granted a rest break of a minimum of 30 minutes, minors working more than 6 hours a rest break of a minimum of 1 hour.
Under the German Maternity Protection Act (Mutterschutzgesetz), breastfeeding mothers must be allowed to breastfeed at their request under continued pay. For this, a minimum 30-minute break twice a day or a one-off break of one hour must be granted, both of which may be extended under certain circumstances.
Employees must be granted a minimum daily rest period of 11 uninterrupted hours for their leisure between the end of their daily work period and the beginning of the next work period. Although this resting time may be reduced by one hour in certain industries (such as in hospitals, nursing and care facilities, restaurants etc.), subsequent compensation periods must then be observed by the employer.
Although once again exceptions apply for certain industries, employees may not be required to work on Sundays and public holidays. In the event that an employee is required to work on a Sunday, where allowed by law, a compensatory day-off must be granted during the following two week period and if the employee is required to work on a public holiday falling on work day, a compensatory day-off during the following eight week period must be granted. A minimum of 15 Sundays per year must remain work-free.
Again, different rules apply to minors, for whom a 12-hour uninterrupted resting time must be observed and they may only be required to work 5 days a week. Although minors may be required to work on Saturdays and Sundays in certain exceptional cases, again compensatory days off must be observed. Apart from certain exceptional cases, pregnant women and nursing mothers may not be required to work from 8 p.m. to 6 a.m. or on Sundays and public holidays.
Employer obligations and sanctions
Employers are obliged to comply with these legal requirements on working time and to grant the relevant amount of rest breaks/resting time and, if applicable, to comply with any existing working time arrangements (for example, set out in collective labor agreements and/or company works agreements). Furthermore, employers are obliged to document any working time exceeding the legal maximum and to keep these records for a minimum of two years. Non-compliance with working time rules by the employer may constitute a misdemeanour sanctioned by fines of up to EUR 15,000 or in serious cases may even constitute a criminal offence. Directors and senior managers can also be held personally liable for breaches of the law.