Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
When employees travel for work the same questions tend to arise over and over again: Does all travel time count as working time? Does the employer have to pay for this time? Often, the response to these questions is unclear. Under German law, however, there are reasonably well-defined criteria that distinguish travel time from working time.
Classification of Travel Time as Working Time
Working time under the German Working Hours Act (ArbZG) is the time from the start to the finish of work. A business trip is defined as a journey to a place outside the regular place of work where a work assignment is to be performed. This seems simple, but raises the question: Does that kind of journey count as "working time"?
Does it Constitute Working Time?
At the outset, clearly "travel to work," i.e., commuting time, or the journey to and from the home to the regular place of business, does not constitute working time. In contrast, when an employment contract stipulates driving as a major part of the work to be performed, as is the case for field staff or professional drivers, for instance, there is also an easy answer: Travel time in this context constitutes working time under the ArbZG.
In other respects, according to the German Federal Labor Court, travel time counts as working time under the ArbZG if the employees are "put to task" in a manner not of their own choosing and predominantly in the interest of the employer. Accordingly, the employer's specific instructions and the choice of transport are decisive factors.
If the employer instructs the employee to perform work during business travel, this will be considered working time. For example, if the employer requires the employee to respond to work email or to attend a phone conference, that would constitute working time. Where no such instructions are given, whether or not the travel time is considered to be working time will be based on other factors:
- If the employee is using public transportation and he or she has the opportunity to use this time for recreation and personal interests, the business trip will not be counted as working time. This applies even if the employee voluntarily performs work in the course of the journey.
- The situation is different if the employee is driving a car: In this case, the (abstract) opportunity for recreation is missing, as the employee has to concentrate on the road. Such travel time would therefore count as working time, provided the employer has instructed the employee to use a car. The time spent by a non-driving passenger in the same vehicle, however, is not counted as working time for that employee.
- Where the employer has given the employee a choice regarding methods of transportation, travel time is not counted as working time, as the employee – at least theoretically – had the opportunity to take public transportation and rest during the journey.
The German Working Hours Act Must be Observed With Regard to Business Travel
Where business travel time is counted as working time under the ArbZG, the law's provisions must be complied with, such as ensuring employees work a maximum of 10 hours per working day and take rest time of 11 hours after the end of work.
Must Travel Time be Paid?
If travel time is counted as working time under the ArbZG, do employees need to be paid for it as well? Working time under the ArbZG is not necessarily the same as compensable working time according to the contract of employment.
The application of these rules is not simple. Working time under the ArbZG must be compensated, and this specifically applies to all business travel during normal business working hours (even if it does not constitute “working time”).
Therefore, business travel during normal business hours must be compensated without regard to whether such travel counts as working time under the ArbZG. Where an employee travels on business outside normal business hours, however, the travel time only needs to be remunerated if agreed to individually or by way of a company or collective agreement. Where no such agreement is in place, a claim for remuneration only arises if the employee could reasonably expect remuneration for the time spent travelling outside his or her normal business working hours. There is no general legal rule that specifies that travel time must be compensated in all cases. Particularly, senior managers with above-average salaries generally do not have a reasonable expectation to be compensated for such travel time.
We would advise employers in Germany not to leave the question of remuneration for travel time open, and would recommend the use of transparent agreements to avoid lack of clarity and the associated potential for conflict. In addition, employers should set clear rules about how the ArbZG's provisions will apply to work travel time. These rules would cover, for example, instructions regarding the means of transport and the timing of travel to off-site meetings. It is usually also helpful to set clear guidelines so that travel time does not exceed the working hour and rest limits set by the ArbZG. Such transparent rules provide clarify for all parties involved.