Where-you-want jobs: How much leeway does labor law allow?

 Companies are granting employees greater flexibility – Five dos and don’ts for HR.

Where-you-want jobs: How much leeway does labor law allow?

Deutsche Bahn attracted attention at the beginning of the year by offering ‘where you want’ jobs. In response to the shortage of skilled workers, companies are considering how to appeal to the needs of their employees by making their place of work and working hours more flexible.

In contrast to the narrower concept of ‘working from home’, remote work or mobile working enables employees to ‘work from anywhere’. By allowing ‘where-you-want’ jobs, employers expand their potential pool of applicants, as employees can also perform a job at the Berlin location while in Stuttgart, for example. Mobile work from abroad is also possible. However, this can present pitfalls for German employers, as we have already reported.

Remote work has barely decreased since the end of mandatory home office

To attract skilled employees, companies are increasingly looking to appeal to their employees’ needs, and address their desire for greater freedom and flexibility. Yet, conversely, innovative companies such as Apple and Tesla have recently made headlines and stirred up social media with their contrary stance regarding working from home. Even after the end of the mandatory home office period the proportion of employees in Germany working at least partially from home has barely decreased, according to the Ifo Institute in Munich. Instead of emphasizing attendance, more and more corporations and large family businesses are focusing on a culture that puts results first. Companies are growing to accept that people have different needs at different stages in their lives.

Workation at Lake Constance as a benefit?

Yet in the long run, even fans of working from home need variety. Remote work enables employees to break out of their daily work routine and relocate their office anywhere: to co-working spaces, to public areas such as cafés or a hotel in the Harz mountains, or to a vacation apartment on Lake Constance. These options can even be offered as a benefit and paid workation. Currently, there seem to be no limits to the ideas.

Requirements for mobile work somewhat more flexible

But how much leeway does labor law allow? The legal requirements governing mobile work have generally become more flexible. Unlike for working from home, the Workplace Ordinance does not apply when employees largely decide on their workplace themselves. After all, employers cannot be disadvantaged if employees freely choose to work at a hotel, hunched over their laptop while sitting on the bed. It is also impossible to check whether the chair in the café fulfills the ergonomic requirements. Nevertheless, HR managers need to bear in mind these five rules regarding mobile work:

  1. Occupational health and safety
    Occupational health and safety regulations such as the risk assessment pursuant to Section 5 (1) of the Occupational Safety and Health Act (ArbSchG), training according to Section 12 (1) of the Occupational Safety and Health Act (ArbSchG) and the Ordinance on Industrial Health and Safety also apply to mobile work, albeit to a limited extent. Therefore, with a view to compliance, HR managers need to document the extent to which employees have been made informed of any hazards.
  2. Working hours
    Essentially, the more flexibly employees work, and the more leisure activities they can integrate into their working day, the greater the risk of the removal of boundaries and working time violations. As such, the Working Hours Act with a maximum working time of eight hours per day continues to apply. Consequently, handling e-mails early in the morning or late in the evening may constitute a violation of the Working Hours Act, which then has to be compensated for in a timely manner. When parents pick up their children from daycare and sit back down at the computer again in the evening, this often results in problems because they may fail to comply with the interrupted rest period of at least eleven hours pursuant to Section 5 (1) of the Working Hours Act (ArbZG). Rest breaks as stipulated by Section 4 of the Working Hours Act (ArbZG) also have to be observed. In view of this, one can only hope that the German government will quickly implement its announcement from the Coalition agreement and create opportunities to deviate from the maximum daily working hours. HR managers also need to keep an eye on the plans by the Federal Minister of Labor, Hubertus Heil, for new regulations governing the recording of working hours.
  3. Protection of data and business secrets
    Mobile work in a café or on a hotel terrace creates a far greater risk of unauthorized access by third parties than in the office or at home. As such, companies need to carefully regulate how personal data and business secrets are handled if employees are permitted to work anywhere. Clear guidelines are essential to safeguard structured processes and IT security, and to ensure that reporting obligations can be met in the event of data loss. The Alliance for Cybersecurity provides a guide for effective data protection and cybersecurity for remote work.
  4. Conclude an agreement and include a revocation option
    As already reported, concluding an ancillary agreement to the employment contract governing mobile work is absolutely essential to enable companies to clearly regulate the rights and obligations concerning work equipment, the protection of data and company secrets, liability, costs, and the revocation options. Even in the case of mobile work, employers remain responsible for compliance with the GDPR. A company agreement is not sufficient.
  5. Observe co-determination
    At companies with a works council, concluding a company agreement on mobile work is always recommended. According to the new co-determination conditions outlined in Section 87 (1) No. 14 of the Works Constitution Act (BetrVG), the works council can even demand to have a say in how remote work is carried out, such as with regard to regulating the working hours, availability of employees, and technical equipment.

The world of work is becoming increasingly complex as companies strive to offer their employees greater flexibility in terms of how and where they work in order to be an attractive employer. For example, ‘where-you-want jobs’ offer advantages for employers by allowing them to recruit employees regardless of their location. This vastly expands the applicant pool, and employees who move away can be retained. Labor law is unable to keep pace with the rising flexibility of the working world. Maintaining as much leeway as possible requires that employment contracts clearly differentiate between mobile work and work from home. In view of pitfalls in labor and social security law, limiting where-you-want jobs to within Germany is generally a sensible approach.