Home Office – Opportunity or Labor Law Trap?

Some companies have drawn the following conclusion from the Coronavirus pandemic: Home office – is easy to implement. But they are wrong. Here you can find out what pitfalls there are and how employers can avoid them.

Due to the Corona-related developments in the work environment, the possibility of working in a home office (also: remote work or mobile office) has moved into the focus of companies. In times of curfew and social distancing, working from home helps to slow down the spreading of the virus. Home office currently serves to protect employees.  

Is Hubertus Heil right?

But even after the pandemic, making home offices possible can be useful. It provides more flexibility, fewer office workplaces have to be made available and commuting times are reduced. It should be thought about not reducing all possibility for utilizing the home office after the crisis. This allows the employees’ to continue to work from their home office and even expand this form of working. The European Agency for Safety and Health at Work (EU OSHA) and also the Federal Minister of Labour Hubertus Heil see home offices as a work concept of the future. 

The term home office is colloquially shaped. It often refers to the performance of work in the employees’ home area. Article 2 Section 7 Workplace Ordinance defines telework places as fully furnished workplaces with a screen in the employees’ private space. However, home office is also possible on a laptop or at non-fixed workstations, depending on the requirement profile of the employment. But there are hardly any differences regarding the realization.

The Check List for Home Office

The following points are important when enabling home office work: 

  • Home Office by Instruction?
    Well-designed employment contracts provide for such an option (e.g. like this “…the employee is obliged to perform his/her work outside the company (remote office; mobile office)…”. This is also regulated by many well negotiated company agreements. The following applies to all other cases: The labor courts decided: Companies are not entitled to order home office one-sidedly.
  • What Working Time Applies?
    The Act on Working Hours also applies in the home office without restriction. Employees have to comply with maximum limits, breaks and rest periods just as in the office. This means no more than 10 working hours a day, and an 11-hour rest period between working days. According to the current ruling of the European Court of Justice (ECJ) on timekeeping (Case C-55/18; CCOO/Deutsche Bank), particular attention should be paid to the correct recording of working hours. The relevant obligations will soon be defined in detail by a new law.
  • Manage Processes and Expectations
    Employers should define clear work processes and expectations in order to simplify work in the home office and create clear structures. To facilitate communication, employees should have quick and easy access to relevant information for work in the home office (e.g. on IT issues, contact persons, timekeeping). It is also recommended to hold regular virtual meetings.
  • Data Protection is a Priority
    Data protection is another important issue. All employment contract, collective or legal regulations that serve data protection and data security apply equally in the home office. This means that if personal data is processed (Section 4 No. 2 GDPR), this is done on the company’s instructions. The company is responsible under data protection law (Section 4 No. 7 GDPR).  Therefore, companies must take all technical and organisational measures to protect personal data (Section 32 GDPR).Here, well-advised employers will design a home office guideline and declare it mandatory, e.g. as a works agreement according to Article 77 Section 4 Sentence 1 Works Constitution Act, see below.

    Employees should also be obligated by contract to take all necessary measures to prevent third parties from viewing and accessing data and information. In this context, details should also be agreed upon as to what employees must specifically observe to protect data. Additionally, especially when working in a home office, employees should pay attention to regular backups of locally stored data – ideally, important data is not stored locally at all.

  • Occupational Safety is Also Important
    Even in the case of the home office, employers are generally responsible for ensuring that the workplace meets all occupational safety requirements. The advice of the European Agency for Safety and Health at Work (EU OSHA) and the Federal Ministry of Labour and Social Affairs is helpful. Particularly when working in a home office at permanently installed workstations with a screen in the private space of the employees, the special features of the workplace’s ordinance need to be observed. Contractual regulations as well as a right of access to the home should be agreed to ensure this. Employees are obliged to cooperate.