21 December 2021
by Jörn-Philipp Klimburg (Kliemt)
Ius Laboris
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There is evidence that a number of employees working remotelyduring the pandemic have taken on second jobs. What can employersin Germany do if they suspect, or know, an employee has anotherjob?
Introduction
Two salaries with easy working hours sounds like the dream ofmany employees. For many, working from home has already brought ahigh degree of flexibility to their working life. Some have usedthe greater time availability (no commute, etc.) to supplementtheir salary with a second job. However, if a secondary job is doneduring the employee's main job working hours, this can havesignificant consequences. We examine the question of whether and inwhat circ*mstances secondary employment working remotely ispermissible and what an employer can do in response to it.
A news story from the US recently made waves: a programmeradmitted to having taken up a second full-time job while workingfrom home due to the pandemic. According to his own statement, hedoes both full-time jobs during his 40-hour working week. It seemstrue to the motto: 'Don't work harder (or longer), worksmarter'. This took place, of course, without the knowledge ofeither of his employers. Inevitably, the question arises whetheremployers in Germany could also be confronted with this kind ofsituation.
What are the rules in Germany?
Secondary employment is generally permitted in Germany and doesnot have to be approved by the 'main' employer. Secondaryemployment can take the following forms:
- another salaried employment relationship with another employer;or
- a freelance employment relationship (self-employed secondaryemployment).
However, if an employee takes up a secondary job (no matter ifit is one hour per week or 40) which s/he wants to pursue duringregular working hours of his or her main job, this constitutes aviolation of the employee's duties under his or her employmentcontract. This is because during an employee's contractuallyagreed working hours, s/he owes the employer full working capacity.The example of the programmer from the US would therefore probablyresult in severe sanctions (see below) if it were tried out here inGermany.
What are the risks for employers?
To be on the safe side, employers usually require theiremployees to declare all secondary employment in their contracts ofemployment or to have any secondary employment approved by theemployer. This regulation is permissible and makes sense. Itenables the employer to check secondary activity and the employershould take this check seriously. It not only prevents the employeefrom working in a competing role, but also prevents violations ofthe Working Hours Act that could result in fines and penalties.
This is because the employer must ensure that the daily maximumworking time of eight hours is not exceeded. In addition, theremust be rest periods of at least eleven hours between workassignments. Particularly when employees work from home, theselimits are already fluid. If the employee takes on a secondary jobin addition to his or her main employment relationship, the risk ofviolations is obvious.
By contrast, if the secondary employment is a self-employedrole, the employer does not have to fear any sanctions, as theWorking Hours Act only applies to 'employed' secondaryemployment.
Finding out if an employee has two jobs
If an employee has not reported any secondary employment, theemployer could potentially check whether s/he is working a secondjob. Indications might include: lack of availability of theemployee by telephone during working hours, frequent reschedulingof meetings or telephone calls, not participating in'optional' appointments, or a significant drop inperformance during the working week due to the burden of two jobs.It could also be helpful to hear from other employees, customers,suppliers or other company partners.
If an employee has a part-time job with another employer, achange in tax class can be an important indication. Only one of thetwo employment relationships can be the 'main employmentrelationship'. Unless explicitly declared otherwise, the mostrecently declared employment relationship is treated as the'main employment relationship'. The previous employmentrelationship automatically becomes a secondary employmentrelationship with tax class VI. If the employee or the new employerdoes not pay attention when registering for social security, theprevious main employer may receive a clear indication of secondaryemployment from this.
If there is a concrete suspicion that secondary employment isbeing carried out during working hours, it might be possible toanalyse the company's IT infrastructure (emails, browserhistory, etc.) for indications to this effect. However, employersmust have significant grounds for suspicion in advance of takingany step of this type, and should proceed proportionately and withcaution, taking into account and respecting the employee'sprivacy and data protection rights, especially if private use of ITis permitted.
How can an employer respond?
Employers have the usual means at their disposal in the event ofsuspected dual employment, from a discussion with HR to formalwarnings and extraordinary dismissal. In addition, employers canconsider asking the employee to return from (pandemic-related) workfrom home. If the place of work was not changed to anemployee's home office either in the employment contract or bya later agreement, s/he has no entitlement to work from home.
Practical advice
Employers who wish to reduce the risk of employees taking onsecondary employment should consider the following measures:
- prevent secondary employment, for example through includingappropriate restrictions in employment contracts;
- conduct appropriate and proportionate monitoring of employeesworking from home, respecting privacy and data protectionrights;
- address the issue with the employee as soon as suspicion arisesand, if there is no improvement, proceed with the usual legaldisciplinary measures.
The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.
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